United States v. Moenck, James D.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 2, 2005
Decided June 6, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-1530
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of
Illinois
v.
No. 03-CR-30041-001
JAMES D. MOENCK,
Defendant-Appellant. Richard Mills,
Judge.
ORDER
James Moenck pleaded guilty to four counts of mail fraud, 18 U.S.C. § 1341,
and was sentenced to 14 months’ imprisonment and three years’ supervised release.
The district court also ordered him to pay $29,012.33 in restitution and a $400
special assessment. Moenck appeals, but his appointed attorney moves to withdraw
under Anders v. California, 386 U.S. 738 (1967), because he can discern no
nonfrivolous issue for appeal. Moenck was notified of counsel’s motion, see Cir. R.
51(b), but he has not filed a response. Counsel’s brief is facially adequate; thus we
limit our review to those potential issues he identifies. See United States v. Tabb,
125 F.3d 583, 584 (7th Cir. 1997). Because an appeal based on the issues set forth
in counsel’s brief would be frivolous, we grant the motion to withdraw and dismiss
Moenck’s appeal.
No. 05-1530 Page 2
While working at Kemp Industries, a commercial refrigeration and heating,
ventilation, and air conditioning business, Moenck and a fellow employee siphoned
off money intended as payment by customers for goods and services rendered by
Kemp. They also illicitly obtained heating and air conditioning units, equipment,
parts, and labor from Kemp and otherwise abused their positions for their own
financial and personal gain. One part of their scheme involved instructing
customers to mail payments to a post office box that Moenck and his accomplice
controlled.
Under the terms of Moenck’s plea agreement, he waived the right to appeal
any and all issues relating to his conviction and sentence, with one exception. He
reserved the right to appeal a finding by the district court that the amount of the
loss, for purposes of counting his base offense level under the sentencing guidelines,
was $70,000 or more. The magistrate judge who conducted the plea hearing
discussed the plea agreement, including the impact of the appeal waiver, with
Moenck before accepting his guilty plea.
In preparation for sentencing, a probation officer prepared a presentence
investigation report recommending, in relevant part, that 8 levels be added to
Moenck’s base offense level of 6 because the amount of the loss exceeded $70,000.
See U.S.S.G. § 2B1.1(b)(1)(E). Moenck objected to that recommendation, arguing
under Blakely v. Washington, 125 S. Ct. 2531 (2004), that the amount of loss must
be determined by a jury beyond a reasonable doubt. However, after the Supreme
Court decided United States v. Booker, 125 S. Ct. 735 (2005), Moenck withdrew his
objection because the new advisory guidelines system permitted the judge to
determine the amount of loss. In the notice of withdrawal, Moenck stated that he
“does not contest the fact that the amount of loss was over $70,000 as detailed in
the pre-sentence report.”
In support of his motion to withdraw, counsel identifies only two potential
issues not foreclosed by the appeal waiver included in Moenck’s plea agreement.
Counsel first considers whether the appeal waiver can be undermined by arguing
that the plea agreement was entered into involuntarily, but concludes that this
argument would be frivolous because it is not supported by the record. We agree
that the district court complied with the requirements of Rule 11 of the Federal
Rules of Criminal Procedure, and that Moenck knowingly and voluntarily
relinquished his right to appeal. See United States v. Jones, 381 F.3d 615, 619
(2004). We are thus precluded from considering any challenges to his sentence or
conviction that are covered by the waiver.
Counsel next considers whether it would be frivolous to appeal the district
court’s loss calculation but concludes that Moenck waived his right to challenge the
No. 05-1530 Page 3
figure by withdrawing his objection in the district court. We agree. Waiver is the
intentional relinquishment of a known right. E.g., United States v. Staples, 202
F.3d 992, 995 (7th Cir. 2000). Moenck knew he had the right to appeal the amount
of loss; he bargained for this right in the plea agreement. By later withdrawing his
objection and explicitly stating that he did not contest the amount of loss set forth
in the PSR, he waived the issue, thereby foreclosing appellate review. Id.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the
appeal.