US v. Jesse Dorsz

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to dismiss appeal [998438483-2] Originating case number: 1:07-cr-00399-JFM-2 Copies to all parties and the district court/agency. [998468299] [10-4453]

US v. Jesse Dorsz

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Case: 10-4453 Document: 31

Date Filed: 11/18/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4453 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JESSE DORSZ, a/k/a 3D, Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, District Judge. (1:07-cr-00399-JFM-2) Submitted: October 29, 2010 Decided: November 18, 2010

Before DUNCAN, AGEE, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Richard Bardos, SCHULMAN, TREEM, KAMINKOW & GILDEN, P.A., Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, John Walter Sippel, Jr., Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Jesse Dorsz appeals his conviction and 210-month

sentence for one count of conspiracy to possess with intent to distribute 500 grams or more of cocaine in violation of 21

U.S.C. § 841(a)(1), (b)(1)(B), (b)(1)(C) (2006), and one count of possession of a firearm in furtherance of a drug trafficking crime in violation has in of 18 U.S.C. §§ 924(c), citing an 2 (2006). The waiver that the

Government contained follow,

moved

to

dismiss,

appellate the we

Dorsz's deny the

plea

agreement. to

For

reasons affirm

we

motion

dismiss,

and

district court's judgment. Dorsz seeks to raise one issue on appeal: that his guilty plea was not voluntary. Specifically, he claims that the

Government represented to his counsel that a cooperating witness would testify that Dorsz murdered David Lee to prevent him from testifying before a grand jury. counsel investigated the murder After Dorsz pled guilty, his allegations further and has

represented that the witness would not testify against Dorsz as the Government claimed. Dorsz argues that had it not been for

the Government's claim that the witness would testify against him, he would have pled not guilty and proceeded to trial. Prior to pleading guilty, Dorsz executed a plea

agreement in which he agreed to waive "all rights conferred by 18 U.S.C. § 3742 [2006] to appeal whatever sentence is imposed, 2

Case: 10-4453 Document: 31

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including

any

fine,

term

of

supervised

release,

or

order

of

restitution and any issues that relate to the establishment of the advisory [G]uidelines range[.]" Pursuant to a plea agreement, a defendant may waive his appellate rights under 18 U.S.C. § 3742. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). United States v. A waiver will

preclude appeal of a specific issue if the waiver is valid and the issue is within the scope of the waiver. Blick, 408 F.3d 162, 168 (4th Cir. 2005). United States v.

Whether a defendant

validly waived his right to appeal is a question of law that this court reviews de novo. Id. at 168. "The validity of an

appeal waiver depends on whether the defendant knowingly and intelligently agreed to waive the right to appeal." (citation omitted). By encompasses its an plain terms, of the appellate waiver He does only not Id. at 169

appeal

Dorsz's

sentence.

challenge his sentence on appeal. was invalid. Accordingly, the

Rather, he argues his plea issue he seeks to raise is

outside the scope of the appellate waiver, so we deny the motion to dismiss. that We have reviewed claim on the record, is however, and we and

conclude

Dorsz's

appeal

without

merit

further response from the Government is not warranted. Because Dorsz did not move to withdraw his guilty plea in the district court, this court 3 reviews for plain error.

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United States v. General, 278 F.3d 389, 393 (4th Cir. 2002); United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002). To demonstrate plain error, a defendant must show that:

(1) there was an error; (2) the error was plain; and (3) the error Olano, rights affected 507 are U.S. his "substantial 732 if (1993). court rights." A United States v.

725,

defendant's that

substantial the guilty the error and

affected the

the

determines to

"influenced impaired his

defendant's to

decision with

plead open

ability

evaluate

eyes

direct United

attendant risks of accepting criminal responsibility."

States v. Goins, 51 F.3d 400, 402-03 (4th Cir. 1995) (internal quotation marks omitted); see also Martinez, 277 F.3d at 532 (holding that a defendant must demonstrate that she would not have pled guilty but for the error). Here, Dorsz has not shown that his substantial rights were affected by any purported error. he was At sentencing, aware him, that and he the the

indicated

(through witness

counsel) would

that

Government's

not

testify

against

district court afforded him the opportunity to move to withdraw his guilty plea on that basis. Dorsz repeatedly and

emphatically declined to move to withdraw his plea. now claim that come he to would light have sooner. pled We not guilty

He cannot had this

information

conclude

that

Dorsz's

claim does not withstand plain error review. 4

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Accordingly, we deny the motion to dismiss and affirm the judgment of the district court. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED

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