US v. Benjamin Faulkner
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [1000229489-2] Originating case number: 3:17-cr-00045-JAG-1. Copies to all parties and the district court/agency. . [17-4621]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. John A. Gibney, Jr., District Judge. (3:17-cr-00045-JAG-1)
Submitted: April 6, 2018
Decided: April 13, 2018
Before MOTZ, DUNCAN, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Donna L. Biderman, LAW OFFICE OF DONNA L. BIDERMAN, PLLC, Fairfax,
Virginia, for Appellant. Jessica D. Aber, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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In accordance with a written plea agreement, Benjamin Faulkner pled guilty to
aggravated sexual abuse of a minor, 18 U.S.C. § 2241(c) (2012). He was sentenced to
life in prison. Faulkner appeals. His attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), raising four issues.
Faulkner has filed a pro se
supplemental brief raising two of the issues identified in the Anders brief. The United
States moves to dismiss the appeal based upon a waiver-of-appellate-rights provision in
the plea agreement. Faulkner opposes the motion. We grant the motion to dismiss the
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 that (1) the defendant knowingly and intelligently waived
his right to appeal, and (2) the issues raised on appeal fall within the scope of the waiver.
United States v. Blick, 408 F.3d 162, 168-69 (4th Cir. 2005).
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.” United States v. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal
quotation marks omitted).
Other factors to be considered are whether the waiver
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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 165, 167-68 (4th
Cir. 1991). Generally, if the district court specifically questioned the defendant regarding
the waiver during the colloquy or the record otherwise indicates that the defendant
understood the full significance of the waiver, the waiver is valid. Johnson, 410 F.3d at
Faulkner’s plea agreement provided in a paragraph captioned “Waiver of Appeal;
FOIA and Privacy Rights:”
[T]he defendant knowingly waives the right to appeal the conviction and
any sentence within the statutory maximum . . . (or the manner in which
that sentence was determined) on the grounds set forth in 18 U.S.C. § 3742
or on any ground whatsoever other than an ineffective assistance of counsel
claim that is cognizable on direct appeal, in exchange for the concessions
made by the United States. . . .
At his Rule 11 hearing, Faulkner informed the court that he was born in 1991 and
had the equivalent of a master’s degree in computer security. He was not under the
influence of drugs or alcohol. Faulkner expressed satisfaction with his lawyer’s services
and advice. He understood the rights he was waiving by pleading guilty.
understood the charge against him and the penalty he faced. Faulkner stated that he had
read and signed the plea agreement, which he had discussed with his attorney. No one
had forced or pressured him to plead guilty. The district court reviewed the plea
agreement and specifically inquired about the appellate waiver. Faulkner stated that he
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understood that, in accordance with his plea agreement, he had given up the right to
appeal. He admitted his guilt.
Based on the totality of the circumstances, we conclude that the waiver was
knowingly and intelligently entered.
As described above, the court substantially
complied with the requirements of Rule 11 1 and questioned Faulkner at the Rule 11
hearing about the waiver. 2 Additionally, Faulkner was familiar with the plea agreement,
in which the waiver of his right to appeal both his conviction and sentence was clearly set
forth in a separate paragraph.
We conclude that Faulkner’s waiver is valid and
In both the Anders and pro se briefs, Faulkner claims that his life sentence is
unreasonable. This issue clearly falls within the scope of the waiver. See Blick, 408 F.3d
Both in the Anders and pro se briefs, Faulkner contends that his guilty plea is
invalid because he was unaware that he had the right to present evidence and call
witnesses. Our review of the plea transcript and the plea agreement convinces us that
Faulkner was well aware of these rights. Further, counsel’s claim that Faulkner’s
Canadian citizenship invalidated the guilty plea lacks merit. Faulkner informed the court
at the Rule 11 hearing that he could read, write and understand English, and, in
accordance with Fed. R. Crim. P. 11(b)(O), the court informed him that he would be
deported to Canada once he completed his sentence.
Contrary to counsel’s argument in the Anders brief, the validity of the waiver is
not impacted because the district court did not mention the waiver at sentencing.
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Pursuant to Anders, we have reviewed the entire record and have found no
meritorious issues for appeal. Accordingly, we grant the motion to dismiss the appeal.
This court requires that counsel inform Faulkner, in writing, of the right to petition the
Supreme Court of the United States for further review. If Faulkner requests that a
petition be filed, but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Faulkner. 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.
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