US v. William Harrison

Filing

UNPUBLISHED PER CURIAM OPINION filed granting Motion to dismiss appeal [999780090-2] Originating case number: 3:15-cr-00121-HEH-1 Copies to all parties and the district court/agency. [999846643]. [15-4746]

Appeal: 15-4746

Doc: 37

Filed: 06/08/2016

Pg: 1 of 7

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4746

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WILLIAM H. HARRISON,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Henry E. Hudson, District
Judge. (3:15-cr-00121-HEH-1)

Submitted:

May 18, 2016

Before KING and
Circuit Judge.

KEENAN,

Decided:

Circuit

Judges,

and

June 8, 2016

DAVIS,

Senior

Dismissed by unpublished per curiam opinion.

Geremy C. Kamens, Federal Public Defender, Frances H. Pratt,
Carolyn
V.
Grady,
Assistant
Federal
Public
Defenders,
Alexandria, Virginia, for Appellant. Jessica D. Aber, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 15-4746

Doc: 37

Filed: 06/08/2016

Pg: 2 of 7

PER CURIAM:
In accordance with a written plea agreement, William H.
Harrison pled guilty to theft of public money, 18 U.S.C. § 641
(2012).
$32,661.76

Harrison
in

was

sentenced

restitution,

and

release.

Harrison now appeals.

pursuant

to

Anders

v.

to

four

three

months

years

in

of

prison,

supervised

His attorney has filed a brief

California,

386

U.S.

738

(1967),

questioning the validity of the sentence but stating that there
are no meritorious grounds for relief.
se supplemental brief.

Harrison has filed a pro

The United States moves to dismiss the

appeal based upon a waiver-of-appellate-rights provision in the
plea agreement.

Harrison opposes the motion.

We grant the

motion to dismiss the appeal.
I
We review de novo the validity of an appeal waiver.

United

States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013).

Where

the Government seeks to enforce an appeal waiver and did not
breach its obligations under the plea agreement, we will enforce
the waiver if the record establishes (1) the defendant knowingly
and intelligently waived his right to appeal under the totality
of the circumstances, and (2) the issues raised on appeal fall
within the scope of the waiver.
F.3d 162, 168-69 (4th Cir. 2005).

2

United States v. Blick, 408

Appeal: 15-4746

Doc: 37

Filed: 06/08/2016

Pg: 3 of 7

A
To determine whether a waiver is knowing and intelligent,
we examine “the totality of the circumstances, including the
experience and conduct of the accused, as well as the accused’s
educational background and familiarity with the terms of the
plea agreement.”
(4th

Cir.

United States v. General, 278 F.3d 389, 400

2002)

(internal

quotation

marks

omitted).

Other

factors to be considered are whether the waiver language in the
plea

agreement

was

“unambiguous”

and

“plainly

embodied,”

and

whether the district court fully questioned the defendant during
the Fed. R. Crim. P. 11 colloquy regarding the waiver of his
right to appeal.

Id. at 400-401; see United States v. Johnson,

410 F.3d 137, 151 (4th Cir. 2005); United States v. Wessells,
936

F.3d

district

165,
court

167-68

(4th

specifically

Cir.

1991).

questions

the

Generally,
defendant

if

the

regarding

the waiver of appellate rights during the colloquy or the record
otherwise

indicates

that

the

defendant

understood

significance of the waiver, the waiver is valid.

the

Johnson, 410

F.3d at 151.
Harrison’s plea agreement provided in relevant part:
The defendant . . . understands that Title 18, United
States Code, Section 3742 affords a defendant the
right to appeal the sentence imposed.
Nonetheless,
the defendant knowingly waives the right to appeal the
conviction and any sentence within the statutory
maximum described above (or the manner in which that
sentence was determined) . . . on any ground
3

full

Appeal: 15-4746

Doc: 37

Filed: 06/08/2016

Pg: 4 of 7

whatsoever, in exchange for the concessions made by
the United States. . . .
With

respect

to

the

“statutory

maximum”

mentioned

in

this

provision, the plea agreement stated, “The maximum penalties for
this offense are a maximum term of ten years imprisonment, a
fine of $250,000, full restitution, a special assessment, and 3
years

of

supervised

release.”

Additionally,

the

agreement

specified that the amount of statutorily mandated restitution
was

$32,661.76.

In

signing

the

agreement,

Harrison

acknowledged, “I have read this plea agreement and carefully
reviewed every part of it with my attorney.

I understand this

agreement and voluntarily agree to it.”
At the Rule 11 hearing, Harrison assured the court that he
understood the maximum penalties he faced to include: ten years
in

prison;

restitution.

three

years

of

Additionally,

supervised
he

release;

responded,

“Yes,

and
I

mandatory
do,”

when

asked if he understood “that supervised release means that when
you are released from prison, you will have to abide by certain
conditions?”

Finally, the court specifically inquired whether

Harrison understood that restitution was mandatory and that the
amount of restitution was $32,661.76.

Harrison responded, “Yes,

sir.”
Harrison advised the court during the hearing that he was
69, had a GED and had taken 60 hours at a community college.

4

He

Appeal: 15-4746

Doc: 37

Filed: 06/08/2016

Pg: 5 of 7

was not under the influence of alcohol or drugs that impaired
his ability to understand the Rule 11 proceeding, the criminal
information,
Harrison

the

plea

stated

that

voluntarily.

agreement,
he

was

or

the

statement

pleading

guilty

of

facts.

freely

and

He was “entirely satisfied” with his attorney’s

services.

Finally,

the

court

inquired

about

the

waiver

provision.
We conclude that, under the totality of the circumstances,
Harrison knowingly and voluntarily waived his right to appeal
both his conviction and sentence.
B
Under

Blick,

the

next

question

is

whether

the

issues

Harrison seeks to raise on appeal fall within the scope of the
waiver.

Harrison

argues

that

the

waiver

did

not

cover

restitution, supervised release, or the conditions of release.
This claim lacks merit.

With respect to restitution, we have

held that “an order to pay restitution is a part of a criminal
sentence.”
2013).

United States v. Grant, 715 F.3d 552, 554 (4th Cir.
We

note

additionally

that

the

plea

agreement

specifically stated that “full restitution” was one penalty for
the offense and set forth the amount of restitution required.
Finally, at the Rule 11 hearing, Harrison represented that he
understood

that

restitution

of

penalties he faced.
5

$32,661.76

was

one

of

the

Appeal: 15-4746

Doc: 37

Filed: 06/08/2016

Pg: 6 of 7

Similarly, there is no merit to the claim that the waiver
did

not

encompass

supervised

release.

The

plea

agreement

plainly stated that the maximum penalty to which Harrison was
subject

included

three

years

of

supervised

release,

and

Harrison informed the court that the penalty he faced included
three years of supervised release.

Finally, “the supervised

release term constitutes part of the . . . criminal sentence.”
United States v. Buchanan, 638 F.3d 448, 455 (4th Cir. 2011).
As for the conditions of release, we have joined sister Circuits
in holding that challenges to conditions of supervised release
fall within the scope of appellate waivers.

United States v.

Ballard, 491 F. App’x 374, 376 (4th Cir. 2012) (No. 11-5014);
see also United States v. Nguyen, 618 F.3d 72, 76 (1st Cir.
2010); United States v. Goodson, 544 F.3d 529, 537 (3d Cir.
2008).
Harrison also contends that the court: failed to consider
all

the

sentence;

18

U.S.C.

did

not

§ 3553(a)

(2012)

adequately

explain

factors
the

when

sentence;

imposing
relied

improperly on past convictions when imposing sentence; should
have varied downward; and did not properly determine the amount
of restitution.

These sentencing issues clearly fall within the

scope of Harrison’s waiver.

6

Appeal: 15-4746

Doc: 37

Filed: 06/08/2016

Pg: 7 of 7

II
Pursuant to Anders, we have reviewed the entire record and
have found no meritorious issues for appeal. *
grant the motion to dismiss the appeal.
that

counsel

petition

the

review.

Accordingly, we

This court requires

inform

Harrison,

in

writing,

of

Supreme

Court

the

United

States

of

the

right

for

to

further

If Harrison requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then
counsel

may

move

representation.

in

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Harrison.

We dispense with oral argument because

the facts and legal contentions are adequately presented in the
materials

before

this

court

and

argument

would

not

aid

the

decisional process.
DISMISSED

*

Contrary to Harrison’s claim, a defendant has no right to
a Fed. R. Crim. P. 11(c)(1)(C) plea agreement.

7