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Criminal – Sentencing – Appeals – Guilty Plea – ‘Any Sentence’ – Waiver

U.S. v. Thornsbury (Lawyers Weekly No. 12-01-0314, 13 pp.) (Duncan, J.) No. 11-7109, March 2, 2012; USDC at Bluefield, W.Va. (Berger, J.) 4th Cir. Full-text opinion.

Holding: A convicted felon pleading guilty to possession of ammunition, who waived his right to appeal “any sentence,” cannot seek to have his sentence on the firearm charge reduced in light of his assistance to the government in prosecuting an unrelated case, and the 4th Circuit dismisses this appeal of the district court’s denial of the government’s motion for a sentence reduction pursuant to Fed. Rule Crim. P. 35(b).

While incarcerated and awaiting sentencing, defendant was assaulted and robbed by fellow inmates. In the ensuing investigation, defendant assisted the government and testified against the orchestrator of the attack. Defendant was again assaulted by an associate of his assailant.

We agree with defendant that we have jurisdiction to hear his appeal pursuant to 18 U.S.C. § 3742(a)(1). Defendant’s appeal challenges the lawfulness of the method used by the district court – i.e., considering non-assistance factors – in reaching its decision to deny the Rule 35(b) motion; accordingly, we have jurisdiction to hear the appeal.

We reject defendant’s argument that, because the possibility of a Rule 35(b) proceeding was not discussed at his allocution, he could not have knowingly and intelligently agreed to waive any rights related to such a proceeding. It is the law of this circuit after U.S. v. Pridgen, 64 F.3d 147 (4th Cir. 1995), that the denial of a Rule 35(b) motion is part of a defendant’s sentence, and it is undisputed that defendant discussed the waiver with his attorney. By knowingly and intelligently waiving his right to appeal “any sentence,” defendant knowingly and intelligently waived his right to appeal the denial of a Rule 35(b) motion. That the specific issue defendant now appeals was not discussed at the Rule 11 hearing does not change our conclusion. We conclude the waiver was valid.

In the face of the plain language of the waiver, defendant nonetheless argues his appeal is outside its scope. He bases his argument on the fact that we have previously held that appeals challenging a sentence as “illegal” fall outside the scope of an otherwise effective waiver. Because defendant claims the district court considered non-assistance factors in denying the government’s motion, he contends his appeal is of an illegal sentence and thus outside the scope of the waiver.

We disagree. We view challenges to a sentence as “illegal” as those involving much more fundamental issues – such as challenges claiming a district court exceeded its authority, claiming that a sentence was based on a constitutionally impermissible factor such as race, or claiming a post-plea violation of the right to counsel. Defendant does not allege any such circumstances. We conclude we must give his waiver effect and dismiss his appeal.

Appeal dismissed.

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