US v. Gerald McCabe

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying motion to terminate or relieve counsel [999430084-2]; granting Motion to dismiss appeal in part and denying motion to dismiss appeal in part [999335479-2] Originating case number: 2:12-cr-00547-RMG-2 Copies to all parties and the district court/agency. [999433976]. [13-4730]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4730

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GERALD MCCABE, a/k/a Jerry,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Charleston.
Richard M. Gergel, District
Judge. (2:12-cr-00547-RMG-2)

Submitted:

August 18, 2014

Decided:

September 11, 2014

Before GREGORY, AGEE, and THACKER, Circuit Judges.

Dismissed in part, vacated in part, and remanded by unpublished
per curiam opinion.

William L. Runyon, Jr., WILLIAM L. RUNYON, JR. LAW OFFICE,
Charleston, South Carolina, for Appellant.
William Nettles,
United States Attorney, Peter T. Phillips, Assistant United
States Attorney, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Gerald

McCabe

appeals

from

his

300-month

sentence

imposed after he pled guilty to one count each of conspiracy to
manufacture fifty or more grams of methamphetamine, in violation
of 21 U.S.C. § 846 (2012), and manufacturing methamphetamine on
premises

where

individuals

under

the

age

of

eighteen

were

present and resided, in violation of 21 U.S.C. § 860a (2012).
McCabe’s

plea

agreement

contained

a

waiver

of

his

right

to

appeal his conviction and sentence, excepting only his right to
assert

claims

misconduct.

of

ineffective

assistance

or

prosecutorial

(4th Cir. Dckt. Entry No. 24, Exh. 1 at 10-11).

The indictment against McCabe issued after an explosion and fire
occurred

in

the

apartment

where

McCabe

resided

with

several

others, and where McCabe and his co-conspirators were believed
to

manufacture

individuals,
grandson,

including

and

neighbor.

methamphetamine.

Joseph

McCabe’s
Raeth,

The

fire

killed

co-conspirator’s
McCabe’s

three

daughter

sixty-five-year

and
old

The district court nonetheless explicitly found at

McCabe’s sentencing that the Government failed to establish by a
preponderance

of

the

evidence

that

the

fire

was

caused

or

determining

an

accelerated by McCabe’s unlawful conduct.
On

appeal,

McCabe

asserts

that

in

appropriate sentence, the district court should have considered
the fact that McCabe’s state probation was revoked because of
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his federal convictions.

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McCabe also asserts that the district

court erred when it ordered him to reimburse half of the cost of
Raeth’s funeral expenses as restitution.

The Government has

moved to dismiss the appeal based on the appellate waiver in
McCabe’s plea agreement, and McCabe has filed a pro se motion to
terminate or relieve his counsel and for the appointment of new
counsel.

We deny McCabe’s pro se motion and although we deny

the Government’s motion, in part, and vacate that portion of the
district

court’s

judgment

ordering

restitution

for

Raeth’s

funeral expenses, we grant the Government’s motion, in part, and
dismiss the remainder of McCabe’s appeal.
It is well-established that a defendant may waive the
right to appeal if that waiver is “a knowing and intelligent
decision

to

forgo

the

right

to

appeal.”

United

States

v.

Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995) (internal
quotation marks omitted).

Whether a defendant has effectively

waived his right to appeal is an issue of law we review de novo.
United States v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014),
pet. for cert. filed, ___ U.S.L.W. ___ (U.S. July 15, 2014) (No.
12-4639).

We will enforce the waiver if it is valid and the

issue appealed is within the scope thereof.

United States v.

Blick, 408 F.3d 162, 168-70 (4th Cir. 2005).
To

determine

whether

a

waiver

is

knowing

and

intelligent, we examine the background, experience, and conduct
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of the defendant.

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Broughton-Jones, 71 F.3d at 1146.

Generally,

if the district court fully questions a defendant regarding the
waiver of his right to appeal during a plea colloquy performed
in accordance with Fed. R. Crim. P. 11, the waiver is both valid
and enforceable.

United States v. Johnson, 410 F.3d 137, 151

(4th Cir. 2005).

The issue ultimately is evaluated by reference

to the totality of the circumstances.
278

F.3d

389,

400

(4th

Cir.

United States v. General,

2002).

Waiver

of

appeal

of

a

sentence, however, does not bar the appeal of a sentence imposed
in

excess

of

the

statutory

validity of a guilty plea.

maximum

or

a

challenge

Id. at 399 & n.4.

to

the

Furthermore, a

defendant does not waive the right to appeal a sentence based on
a

constitutionally

States

v.

Marin,

impermissible
961

F.2d

factor

493,

496

such

as

race,

(4th

Cir.

United

1992),

or

proceedings conducted in violation of the Sixth Amendment right
to

counsel

following

the

entry

of

the

guilty

plea.

United

States v. Attar, 38 F.3d 727, 732-33 (4th Cir. 1994).
McCabe does not allege any defects in his plea hearing
and he does not dispute that the proceeding complied with Fed.
R. Crim. P. 11.

Rather, McCabe suggests only that the issues he

raises on appeal are not barred by his appeal waiver.

However,

McCabe points this court to no authority for his proposition
that the district court’s alleged failure to consider his state
sentence

rendered

his

federal

sentence
4

unconstitutional.

We

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nonetheless find that this assignment of error implicates no
issues that would be excepted from McCabe’s appellate waiver.
Thus, McCabe may not raise this issue on appeal.
McCabe’s challenge to his restitution order is more
problematic, however.

In this regard, it is well established

that “federal courts do not have the inherent authority to order
restitution, but must rely on a statutory source to do so.”
United

States

v.

Davis,

714

F.3d

809,

812

(4th

(internal quotation marks and alterations omitted).

Cir.

2013)

Thus, “[a]

restitution order that exceeds the authority of the statutory
source is no less ‘illegal’ than a sentence of imprisonment that
exceeds the statutory maximum.”
omitted).

Accordingly,

“appeals

Id. (internal quotation marks
challenging

the

legality

of

restitution orders are . . . outside the scope of a defendant’s
otherwise valid appeal waiver.”

Broughton-Jones, 71 F.3d at

1147.
Moreover, although McCabe’s failure to challenge his
restitution order in the district court requires us to review
the restitution order for plain error, see Davis, 714 F.3d 81516, we have found and corrected plain error after finding that
restitution was ordered to someone who was not a “victim” of the
offense of conviction.

See id. at 812-14 (finding plain error

and reversing restitution award where plea agreement did not
mandate restitution to victim and victim’s loss was not caused
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by the specific conduct that was the basis for the offense of
conviction); cf. United States v. Freeman, 741 F.3d 426, 435-39
(4th Cir. 2014) (reversing district court’s restitution order
after abuse of discretion review because “the Government utterly
failed to provide any evidence that the losses sustained by the
purported

victims

here

were

caused

by

the

specific

conduct

underlying Appellant’s offense of conviction”).
Because McCabe’s plea agreement makes no mention of a
restitution award, and since the district court explicitly found
that the Government did not prove by a preponderance of the
evidence that McCabe’s drug conspiracy caused the apartment fire
that

resulted

in

Raeth’s

death,

it

was

plain

error

for

the

district court to order McCabe to reimburse Raeth’s estate for
half the cost of Raeth’s funeral.
Based

on

the

foregoing,

we

deny

the

Government’s

motion to dismiss, in part, vacate that portion of the district
court’s judgment ordering McCabe to pay half of Raeth’s funeral
expenses

as

restitution,

and

we

remand

further proceedings as may be appropriate.
the

Government’s

motion

to

dismiss,

in

for

such

other

and

We nonetheless grant
part,

deny

McCabe’s

motion to terminate or relieve counsel and for the appointment

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of new counsel, * and dismiss the remainder of McCabe’s appeal.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

DISMISSED IN PART,
VACATED IN PART,
AND REMANDED

*

Because McCabe is represented by counsel who has filed a
merits brief, as opposed to a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), he is not entitled to file a
pro se supplemental brief.
See Fed. R. App. P. 28(a), (c)
(permitting appellant to file a formal brief and a reply brief).
Moreover, to the extent McCabe is attempting to raise in his
motion ineffective assistance of counsel claims, ineffective
assistance does not conclusively appear on the record.
See
United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008)
(holding that an ineffective assistance of counsel claim is not
cognizable on direct appeal “unless it conclusively appears from
the record that defense counsel did not provide effective
representation”)
(internal
quotation
marks
and
citation
omitted).
To the contrary, since this court has decided to
vacate McCabe’s criminal judgment, in part, and remand to the
district court for further proceedings, appellate counsel has
secured at least partial relief.
7