United States v. Blick

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 04-4887

GEORGE R. BLICK,

Defendant-Appellant.



Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, Chief District Judge.

(CR-04-7)

Argued: March 18, 2005

Decided: May 27, 2005

Before MICHAEL and SHEDD, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Dismissed by published opinion. Judge Shedd wrote the majority

opinion, in which Senior Judge Hamilton joined. Judge Michael wrote

a dissenting opinion.

COUNSEL

ARGUED: Jeffrey S. Parker, Great Falls, Virginia, for Appellant.

Dana James Boente, Assistant United States Attorney, OFFICE OF

THE UNITED STATES ATTORNEY, Alexandria, Virginia, for

Appellee. ON BRIEF: Gilbert K. Davis, DAVIS & ASSOCIATES,

L.L.C., Fairfax, Virginia; James R. Tate, TATE & BYWATER,

2 UNITED STATES v. BLICK

LTD., Vienna, Virginia, for Appellant. Paul J. McNulty, United States

Attorney, Alexandria, Virginia, for Appellee.

OPINION

SHEDD, Circuit Judge:

George R. Blick appeals his 30-month sentence for wire fraud on

two grounds: (1) the district court erroneously calculated the loss

amount under U.S.S.G. § 2B1.1 in determining his sentencing guide-

line range, and (2) he should be resentenced in accord with United

States v. Booker, 125 S. Ct. 738 (2005). The United States has moved

to dismiss the appeal based on the appeal waiver in Blick’s written

plea agreement. Because we find that the appeal waiver is valid and

that the issues Blick has raised are within the scope of the waiver, we

grant the motion and dismiss this appeal.

I.

In January 2004, Blick was indicted on seven counts of wire fraud.

Before trial, Blick and the United States entered into a plea agree-

ment, in which he agreed to plead guilty to Count 5 of the indictment.

A.

The plea agreement contains a statement of facts that Blick agrees

establishes his guilt on Count 5 beyond a reasonable doubt. These

facts generally show that between March and October 2003, Blick

was a principal and one-third shareholder of Enterprise Integration,

Inc. ("EII"), a Fairfax, Virginia, information systems consulting busi-

ness. EII maintained an account at the Bank of America ("the BOA

account"). Blick was responsible for EII’s accounting and routine

business affairs, and he was a signatory on the BOA account.

Between April and September 2003, Blick made unauthorized

withdrawals and payments totaling approximately $1,440,000 from

the BOA account to fund a personal transaction that was unrelated to

EII’s business. Count 5 specifically relates to a July 29, 2003, wire

UNITED STATES v. BLICK 3

transfer of $180,000 Blick made (or caused) from the BOA account

to Pratt Morgan, Ltd. in Madrid, Spain. Blick’s EII partners were

unaware of his unauthorized withdrawals and payments, and Blick

believed that they would not have consented if they had known about

them.

On July 11, 2003, three days before a new accountant was to begin

working at EII, Blick deposited $785,000 into EII accounts to replace

his prior unauthorized withdrawals and payments. Blick did not

record any withdrawals or payments on EII’s books until August 15,

2003. In late August 2003, Blick — without the knowledge or consent

of his partners — requested that BOA change the mailing address for

EII to a commercial mail receiving business. Blick committed all of

these acts for the purpose of executing a scheme to defraud EII.

B.

The plea agreement also contains several provisions related to sen-

tencing. Blick and the United States acknowledged in the plea agree-

ment that the "maximum penalties" for the wire fraud offense charged

in Count 5 are "a maximum term of 20 years of imprisonment, a fine

of $250,000, full restitution, a special assessment, and three years of

supervised release." Blick acknowledged his understanding that the

district court had "jurisdiction and authority to impose any sentence

within the statutory maximum described above but that the Court

[would] determine [his] actual sentence in accordance with the Sen-

tencing Guidelines and Policy Statements."

The parties also agreed that "the actual or intended loss from the

scheme to commit wire fraud [for purposes of U.S.S.G. § 2B1.1] is

no greater than $655,000," and that Blick "reserves his right to con-

tend he is entitled to a credit against the loss pursuant to Application

Note 2(E)."1 Moreover, Blick agreed to the entry of a restitution order

"for the full amount of the victims’ losses," and he acknowledged that

the United States was then aware that EII was a victim which had suf-

1

Blick’s July 11, 2003, deposit of $785,000 into EII’s accounts left a

shortfall of $655,000. Under Application Note 2(E) to U.S.S.G. § 2B1.1,

the amount of loss is reduced by any money the defendant returned to the

victim before the offense was detected.

4 UNITED STATES v. BLICK

fered a loss of $655,000. The parties further agreed that under appro-

priate circumstances Blick would be entitled to a three-level

sentencing reduction under U.S.S.G. § 3E1.1 for acceptance of

responsibility.

In a section of the plea agreement titled "Waiver of Appeal and

Review," Blick acknowledged his understanding of his right under 18

U.S.C. § 3742 to appeal the sentence imposed. However, Blick agreed

that he "knowingly waives the right to appeal . . . any sentence within

the maximum provided in the statute of conviction (or the manner in

which that sentence was determined) on the grounds set forth in

[§ 3742] or on any ground whatsoever, in exchange for the conces-

sions made by the United States in [the] plea agreement." The United

States’ concessions included dismissal of the remaining six counts of

the indictment and the grant of immunity to Blick from criminal pros-

ecution in the Eastern District of Virginia for the remaining conduct

described in the indictment and the stipulated facts.

Blick and his counsel signed the plea agreement. By their signa-

tures, Blick and his counsel represented that Blick had been fully

advised concerning the terms of the plea agreement and that his deci-

sion to enter into the plea agreement was voluntary.

C.

At the guilty plea hearing, in response to questioning from the dis-

trict court, Blick stated under oath that he understood his rights and

how they would be affected by his guilty plea. Blick also stated that

the factual statement in the plea agreement was accurate and that he

was entering the plea voluntarily.

The district court also specifically inquired whether Blick had

reviewed the plea agreement and whether he understood that in the

agreement he was waiving "any right [he] may have to appeal the sen-

tence that may be imposed." Blick answered both questions in the

affirmative. Additionally, the district court asked Blick whether he

understood "that by pleading guilty, the Court may impose the same

punishment as if [he] had been tried and convicted by a court or by

a jury." Blick answered, "Yes, sir, I do." Blick likewise indicated in

response to questions from the district court that he understood that

UNITED STATES v. BLICK 5

he could be imprisoned "up to 20 years" and that "any sentence that

may be imposed will be affected by the Sentencing Guidelines."

At the conclusion of the hearing, the district court found that Blick

"voluntarily and intelligently" entered the plea and that a factual basis

supported the plea. Accordingly, the district court accepted the plea

and found Blick guilty on Count 5 of the indictment.

II.

Less than one month after Blick pled guilty, but before he was sen-

tenced, the Supreme Court decided Blakely v. Washington, 124 S. Ct.

2531 (2004). In Blakely, the Court considered the constitutionality of

the State of Washington’s determinate sentencing scheme. Blakely

had pled guilty to kidnaping, a felony punishable by a term of not

more than 10 years of imprisonment. Other provisions of Washington

law, comparable to the federal sentencing guidelines ("Guidelines"),

mandated a sentencing range for Blakely of 49 to 53 months, unless

the sentencing judge found aggravating facts justifying an exceptional

sentence. The sentencing judge found that Blakely had acted with

"deliberate cruelty" and therefore sentenced him to 90 months of

imprisonment. Id. at 2534.

The Court, applying the rule announced in Apprendi v. New Jersey,

530 U.S. 466, 490 (2000) (holding that "[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt"), held that the imposition of the

sentencing enhancement — which was based solely on the sentencing

judge’s factual findings — violated Blakely’s Sixth Amendment

rights because the facts supporting the findings were neither admitted

by Blakely nor found by a jury. 124 S. Ct. at 2536-38. The Court thus

set aside Blakely’s sentence. Id. at 2538. Although the Court

expressed no opinion on the effect its decision may have on the

Guidelines, see id. at 2538 n.9, several dissenting Justices expressed

concern that Blakely necessarily implied the invalidity of important

aspects of the Guidelines. See, e.g., id. at 2550 (O’Connor, J., dissent-

ing); id. at 2561 (Breyer, J., dissenting).2

2

These Justices had expressed similar concerns in Apprendi. See, e.g.,

530 U.S. at 544 (O’Connor, J., dissenting).

6 UNITED STATES v. BLICK

Shortly after Blakely was decided, we convened en banc in United

States v. Hammoud, to consider Blakely’s impact. Following that

hearing, we entered an order affirming the judgment and holding that

Blakely did not operate to invalidate Hammoud’s sentence under the

Guidelines. United States v. Hammoud, 378 F.3d 426 (4th Cir. 2004).

We also instructed the district courts in this circuit to continue sen-

tencing criminal defendants in accordance with the Guidelines, but we

recommended that they announce, at the time of sentencing, a sen-

tence pursuant to 18 U.S.C. § 3553(a), treating the Guidelines as advi-

sory only. 378 F.3d at 426.

III.

After we decided Hammoud, a probation officer filed a presentence

report ("PSR") recommending that Blick’s sentencing range was 30-

37 months of imprisonment. The probation officer recommended this

range based on her conclusion that Blick’s criminal history category

was I, and his total offense level was 19. In calculating the total

offense level, the probation officer began with a base offense level of

6, see U.S.S.G. § 2B1.1(a), and added 14 levels because the total

intended loss of Blick’s conduct was $655,000, see U.S.S.G.

§ 2B1.1(b)(1)(H). The probation officer added another two levels for

Blick’s abuse of a position of trust, see U.S.S.G. § 3B1.3, and sub-

tracted three levels for his acceptance of responsibility, see U.S.S.G.

§ 3E1.1(b).

Before his sentencing hearing, Blick filed a sentencing memoran-

dum and objections to the PSR. Generally, Blick argued that the loss

amount for purposes of the sentence should be zero rather than

$655,000 based on a "net loss" calculation. As he explains in his

appellate brief: "The bottom-line is Blick’s contention that he took his

own money and the net loss to EII is zero." Blick also argued that

under Blakely the district court would not be permitted to enhance his

sentence at all for a loss amount or for abuse of a position of trust.

Despite making this latter argument, Blick acknowledged our holding

in Hammoud.

During the sentencing hearing, Blick reiterated his "net loss" and

Blakely arguments. The district court rejected these arguments and,

consistent with the recommendation in the PSR, sentenced Blick to

UNITED STATES v. BLICK 7

a term of 30 months of imprisonment and ordered him to pay

$655,000 in restitution to EII.3 The district court did not announce an

alternate sentence under Hammoud. The remaining counts of the

indictment were dismissed, and judgment was entered.

Despite his agreement not to appeal his sentence, Blick filed this

appeal. In response, the United States moved to dismiss based on

Blick’s appeal waiver. While that motion was pending, the Supreme

Court held in Booker that Blakely applies to the Guidelines and, there-

fore, the Sixth Amendment is violated when a district court imposes

a mandatory sentence under the Guidelines that is greater than the

maximum authorized by the facts found by the jury alone. 125 S. Ct.

at 755. The Court also held, however, that two provisions of the stat-

ute creating the Guidelines system must be excised to make it com-

patible with the Sixth Amendment; this aspect of Booker makes the

Guidelines advisory and their application subject to review for rea-

sonableness. Id. at 764-65. The Court further held that its decision

applies to all cases on direct review, subject to the application of "or-

dinary prudential doctrines." Id. at 769. In light of Booker, we

directed the parties to file briefs addressing the impact, if any, that

decision may have on this appeal.

IV.

Blick appeals his sentence on two grounds. First, he contends that

the district court erred in calculating the loss amount under U.S.S.G.

§ 2B1.1 because it did not accept his "net loss" theory. Second, he

contends that the district court’s sentencing enhancements for the loss

amount and abuse of a position of trust run afoul of Booker and that

he must therefore be resentenced. The threshold issue we must con-

sider is whether the appeal waiver in Blick’s plea agreement pre-

cludes him from presenting these issues on appeal. For the following

reasons, we conclude that it does.

3

The district court did not question the veracity of the evidence prof-

fered by Blick on the "net loss" issue. Instead, the district court rejected

the "net loss" theory, explaining: "[A]s long as you could liquidate any

company . . . and somebody can embezzle at will as long as the liqui-

dated value that they have in the company is greater than what they took,

there is a zero embezzlement. I question that."

8 UNITED STATES v. BLICK

A.

A criminal defendant’s right to appeal a sentence arises under 18

U.S.C. § 3742. In United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.

1990), we held that a defendant can waive this right under appropriate

circumstances.

Wiggins — despite signing a plea agreement that included a waiver

of his right to appeal his sentence — appealed the district court’s

refusal to grant a sentencing reduction for acceptance of responsibil-

ity. Because we found that the appeal waiver was voluntarily and

intelligently made, we dismissed the appeal without addressing the

merits of Wiggins’ argument. Id. at 54. We reasoned that "[i]f defen-

dants can waive fundamental constitutional rights such as the right to

counsel, or the right to a jury trial, surely they are not precluded from

waiving procedural rights granted by statute." Id. at 53 (internal quo-

tation marks and citation omitted). We also observed that because

appeal waivers "preserve[ ] the finality of judgments and sentences

imposed pursuant to valid pleas of guilty," they "should be given their

proper effect," and a defendant who waives his right to appeal for the

purpose of obtaining concessions from the government "may not . . .

ignore his part of the bargain." Id. at 54.

Since Wiggins, we have consistently adhered to the principle that

sentencing appeal waivers generally are enforceable, and we have

enforced such waivers in a number of cases.4 In doing so, we have

noted that holding a defendant to the plea bargain he struck is not "in-

equitable" because "[u]nlike a defendant who is sentenced after trial,

a defendant who enters a plea bargain has some control over the terms

4

See, e.g., United States v. General, 278 F.3d 389, 399-401 (4th Cir.

2002); United States v. Brown, 232 F.3d 399, 402-06 (4th Cir. 2000);

United States v. Brock, 211 F.3d 88, 92 n.6 (4th Cir. 2000); United States

v. Lambey, 974 F.2d 1389, 1393 n.* (4th Cir. 1992) (en banc); United

States v. Marin, 961 F.2d 493, 495-96 (4th Cir. 1992); see also United

States v. Davis, 954 F.2d 182, 185-86 (4th Cir. 1992) (enforcing a waiver

that precluded the defendant from appealing certain convictions); cf.

United States v. Williams, 29 F.3d 172, 174-75 (4th Cir. 1994) (holding

that a defendant who stipulated his drug amounts prior to sentencing

waived his right to appeal on the issue of the drug amounts).

UNITED STATES v. BLICK 9

of his sentence," and if he "wants to ensure that he is sentenced in

strict accordance with the guidelines, he can refuse to waive his right

to appeal as a condition of the plea." Brown, 232 F.3d at 406 (citation

omitted).5 Recently, in United States v. Lemaster, 403 F.3d 216 (4th

Cir. 2005), we extended our general rule concerning appeal waivers

and held that a defendant may waive in a plea agreement his right

under 28 U.S.C. § 2255 to attack his conviction and sentence collater-

ally.

Whether a defendant has effectively waived the right to appeal is

an issue of law that we review de novo. Marin, 961 F.2d at 496.

Where, as here, the United States seeks enforcement of an appeal

waiver, see Brock, 211 F.3d at 90 n.1 (declining to consider an appeal

waiver that "arguably" barred the appeal on one issue because the

United States "expressly elected not to argue waiver with regard to

this issue"), and there is no claim that the United States breached its

obligations under the plea agreement, see Bowe, 257 F.3d at 342

(holding that the United States’ breach of the plea agreement releases

the defendant from the appeal waiver), we will enforce the waiver to

preclude a defendant from appealing a specific issue if the record

establishes that the waiver is valid and that the issue being appealed

is within the scope of the waiver, United States v. Attar, 38 F.3d 727,

731-33 (4th Cir. 1994).

B.

The validity of an appeal waiver depends on whether the defendant

knowingly and intelligently agreed to waive the right to appeal. Id. at

5

To whatever extent appeal waivers can be considered "inequitable,"

we evened the playing field somewhat in United States v. Guevera, 941

F.2d 1299, 1299 (4th Cir. 1991), where we held that when a defendant

waives the right to appeal in a plea agreement, "such a provision against

appeals must also be enforced against the government." In United States

v. Bowe, 257 F.3d 336, 342 (4th Cir. 2001), we held that "a party’s

waiver of the right to seek appellate review is not enforceable where the

opposing party breaches a plea agreement," and a defendant’s material

breach of the plea agreement releases the United States "from its implied

reciprocal promise under Guevara not to appeal the merits of a judgment

of conviction or sentence."

10 UNITED STATES v. BLICK

731-32. Although this determination is often made based on the ade-

quacy of the plea colloquy — specifically, whether the district court

questioned the defendant about the appeal waiver — the issue ulti-

mately is "evaluated by reference to the totality of the circumstances."

General, 278 F.3d at 400. Thus, the determination "must depend, in

each case, upon the particular facts and circumstances surrounding

that case, including the background, experience, and conduct of the

accused." Davis, 954 F.2d at 186 (internal quotation marks and cita-

tion omitted).6

Here, the record fully establishes that Blick knowingly and intelli-

gently waived his right to appeal. The language and meaning of the

appeal waiver — indeed, the plea agreement as a whole — is clear

and unmistakable, and both Blick and his attorneys represented by

their signatures to the plea agreement that Blick had been fully

advised about, and understood, its terms. Moreover, during the plea

colloquy the district court specifically questioned Blick — who has

a college education — about his understanding of the appeal waiver,

and Blick stated that he understood that he was "waiving any right

[he] may have to appeal the sentence that may be imposed." Addition-

ally, the district court found, after conducting the plea colloquy, that

Blick was entering the plea "voluntarily and intelligently." Nothing in

the record before us suggests that the district court’s finding in this

regard is erroneous. For these reasons, we find that the appeal waiver

is valid.

C.

We must now consider whether the two issues Blick has raised on

appeal fall within the scope of the appeal waiver. The appeal waiver

bars Blick from appealing "any sentence within the maximum pro-

vided in the statute of conviction (or the manner in which that sen-

tence was determined)" on "any ground whatsoever." Therefore, the

scope of the appeal waiver is twofold: (1) Blick cannot appeal on any

ground any sentence within the maximum provided in the statute of

6

We have noted that although Fed. R. Crim. P. 11 now requires district

courts to inquire about appeal waivers during the plea colloquy, the fail-

ure to comply with the requirement is subject to plain error review. Gen-

eral, 278 F.3d at 400 n.5.

UNITED STATES v. BLICK 11

conviction, and (2) he cannot appeal on any ground the manner in

which any sentence within the maximum provided in the statute of

conviction was determined. Clearly, the language of this waiver is

exceedingly broad, and (standing alone) it bars Blick from appealing

his sentence unless it is not "within the maximum provided in the stat-

ute of conviction." See United States v. Rubbo, 396 F.3d 1330, 1333

(11th Cir. 2005) ("The general waiver language — ‘all rights con-

ferred by [§ 3742] to appeal any sentence imposed . . . or to appeal

the manner in which the sentence was imposed’ — certainly is broad

enough to cover any issues arising from Apprendi . . . and its progeny,

up to and including Booker.").

Blick was convicted under 18 U.S.C. § 1343. As Blick correctly

acknowledged in the plea agreement and at his guilty plea hearing, the

maximum sentence under § 1343 is 20 years of imprisonment. Blick’s

30-month sentence is obviously "within the maximum provided in the

statute of conviction."7

Consequently, we find that the issues Blick has raised on appeal

7

We agree with the other circuits which have considered the issue that

the Court’s use of the term "statutory maximum" in Blakely and Booker

does not alter the meaning of the language in the appeal waiver. See

United States v. Green, ___ F.3d ___, 2005 Westlaw 1060608, at *10

(10th Cir. May 6, 2005) ("In holding that the term of art meaning for

‘statutory maximum’ applies in sentencing guidelines cases, the Supreme

Court has not mandated that every time the phrase ‘statutory maximum’

is invoked, the Blakely/Booker definition should apply."); Rubbo, 396

F.3d at 1334 ("The point here is that the definition of ‘statutory maxi-

mum’ the Supreme Court used to describe and explain its holdings in

those cases says nothing about what Rubbo and the government meant

when they used the term ‘the maximum permitted by statute’ in the

appeal waiver. This is not a matter of legal research. It is a question of

the parties’ intent."); United States v. West, 392 F.3d 450, 460 (D.C. Cir.

2004) ("Having consented in such plain terms to sentencing under the

Guidelines, West would have us believe that he nevertheless reserved a

constitutional challenge to the Guidelines through an exceedingly subtle

employment of ‘statutory maximum.’ We find such a reading of the

agreement untenable."); see also United States v. McKinney, ___ F.3d

___, 2005 Westlaw 887153, at *3 n.5 (5th Cir. April 15, 2005) (follow-

ing Rubbo and West).

12 UNITED STATES v. BLICK

unquestionably fall within the scope of the appeal waiver. In making

his "net loss" argument, Blick is appealing a sentence that is within

the maximum provided in § 1343, and in making his Booker argument

he is appealing the manner in which that sentence was determined.

Blick is therefore attempting to do exactly what the appeal waiver for-

bids.

We reject Blick’s contention that his reservation of the right "to

contend he is entitled to a credit against the loss" — a right he fully

exercised at his sentencing hearing — allows him to appeal the "net

loss" issue. Moreover, the fact that Blick claims in his "net loss" argu-

ment that the district court erred in its guideline calculation is of no

moment here. As we explained in Brown, an appeal waiver of the type

involved in this case "precludes a claim that the given sentence

resulted from a misapplication of the Guidelines." 232 F.3d at 404.

We also reject Blick’s contention that he could not have knowingly

waived his rights under Booker — or that his Booker argument is nec-

essarily outside the scope of the appeal waiver — because that case

had not been decided when he entered into the plea agreement. In

doing so, we join with the other circuits that have considered this type

of argument since Booker. See United States v. Lockett, ___ F.3d ___,

2005 Westlaw 1038937, at *5 (3d Cir. May 5, 2005) ("The record

reflects that Lockett knowingly and voluntarily bargained for his plea

agreement. He cannot now ask to re-bargain the waiver of his right

to appeal because of changes in the law."); United States v. Bradley,

400 F.3d 459, 463 (6th Cir. 2005) ("A valid plea agreement . . .

requires knowledge of existing rights, not clairvoyance."); United

States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir.), cert.

denied, ___ U.S.L.W. ___ (U.S. May 16, 2005) (No. 04-9566) ("An

appeal waiver includes the waiver of the right to appeal difficult or

debatable legal issues. . . ."); United States v. Killgo, 397 F.3d 628,

629 n.2 (8th Cir. 2005) ("The fact that Killgo did not anticipate the

Blakely or Booker rulings does not place the issue outside the scope

of his waiver.");8 cf. United States v. Sahlin, 399 F.3d 27, 30-31 & n.3

8

See also Green, 2005 Westlaw 1060608, at **7-10; United States v.

Cardenas, ___ F.3d ___, 2005 Westlaw 1027036, at *2 (9th Cir. May 4,

2005); United States v. Morgan, ___ F.3d ___, 2005 Westlaw 957186,

at **1-2 (2d Cir. Apr. 27, 2005); United States v. Bownes, 405 F.3d 634,

636-38 (7th Cir. 2005).

UNITED STATES v. BLICK 13

(1st Cir. 2005) (rejecting as "frivolous," in the context of an attempt

to withdraw a guilty plea, the defendant’s argument that his plea was

not knowing and voluntary because he did not anticipate Booker); see

generally United States v. Ruiz, 536 U.S. 622, 629 (2002) ("And the

law ordinarily considers a waiver knowing, intelligent, and suffi-

ciently aware if the defendant fully understands the nature of the right

and how it would likely apply in general in the circumstances — even

though the defendant may not know the specific detailed conse-

quences of invoking it.") (emphasis in original).

D.

Notwithstanding the foregoing, Blick contends that his Booker

argument is not within the scope of his appeal waiver based on a prin-

ciple we first announced in Marin: i.e., "a defendant who waives his

right to appeal does not subject himself to being sentenced entirely at

the whim of the district court." 961 F.2d at 496.9 Applying this princi-

ple, we have refused to enforce valid appeal waivers for a "narrow

class of claims," Lemaster, 403 F.3d at 220 n.2, based on our determi-

nation that those claims were not within the scope of the waiver.10

For example, the defendants in Attar waived their right to appeal

"whatever sentence is imposed." 38 F.3d at 729. After the defendants

pled guilty, a conflict developed between the defendants and their

9

We continued: "For example, a defendant could not be said to have

waived his right to appellate review of a sentence imposed in excess of

the maximum penalty provided by statute or based on a constitutionally

impermissible factor such as race." 961 F.2d at 496. Nonetheless, this

language appears to be dicta because we held that the sentence being

appealed in that case "is not such a sentence." Id.

10

As noted, we analyze appeal waivers under a two-part analysis by

which we consider the validity and the scope of the waiver. We note that

some other circuits analyze appeal waivers under a three-part analysis.

See, e.g., United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir. 2004);

United States v. Andis, 333 F.3d 886, 891-92 (8th Cir. 2003). These cir-

cuits consider the validity and scope of the waiver, and also whether

enforcement of the waiver will result in a miscarriage of justice.

Although we have not used the term miscarriage of justice in analyzing

appeal waivers, the concept seems to be subsumed within our analysis of

the scope of the waiver.

14 UNITED STATES v. BLICK

attorneys, and the attorneys moved to withdraw and to continue the

sentencing. The district court denied the motions and ordered the

defendants to appear for their sentencing hearing. At the sentencing

hearing, however, the district court permitted the attorneys to with-

draw, but it did not discuss with the defendants the perils of proceed-

ing pro se or ensure that they wanted to proceed in that manner.

On appeal, the defendants argued that their sentences should be set

aside because the proceedings following their guilty pleas — includ-

ing the sentencing hearing — "were conducted in violation of their

Sixth Amendment right to counsel." Id. at 731. The United States

moved to dismiss the appeal "because the defendants waived all rele-

vant appeal rights in the plea agreement." Id. Although we found that

the appeal waiver was "generally valid and enforceable," we noted

that "the real dispute" was not about its validity, but about its scope.

Id. at 732. Referring to Marin, we stated that we did not think that a

defendant who agreed to a general appeal waiver "can fairly be said

to have waived his right to appeal his sentence on the ground that the

proceedings following entry of the guilty plea were conducted in vio-

lation of his Sixth Amendment right to counsel, for a defendant’s

agreement to waive appellate review of his sentence is implicitly con-

ditioned on the assumption that the proceedings following entry of the

plea will be conducted in accordance with constitutional limitations."

Id. We continued:

In this case, defendants do not seek to challenge their sen-

tences on the ground that they rest on an improper applica-

tion of the guidelines or a violation of some procedural rule,

as did the defendant in Marin. Instead, they seek to chal-

lenge their sentences on the ground that the proceedings fol-

lowing entry of the guilty plea — including both the

sentencing hearing itself and the presentation of the motion

to withdraw their pleas — were conducted in violation of

their Sixth Amendment right to counsel. We do not think the

general waiver of appeal rights contained in this plea agree-

ment can fairly be construed as a waiver of the right to chal-

lenge their sentences on that ground. Accordingly, we

decline to dismiss this appeal, and proceed instead to its

merits.

UNITED STATES v. BLICK 15

11

Id. at 732-33 (citations omitted).

Similarly, in United States v. Broughton-Jones, 71 F.3d 1143 (4th

Cir. 1995), we held that a valid appeal waiver in which Broughton-

Jones waived her right to appeal her sentence on the grounds set forth

in § 3742 did not preclude her from asserting on appeal that a restitu-

tion order (to which she had informally agreed) was not authorized by

the applicable statute. Broughton-Jones had been charged with wire

fraud and perjury, and she pled guilty only to one count of perjury.

The district court sentenced her, among other things, to pay restitution

to the wire fraud victim.

We concluded that the issue raised by Broughton-Jones fell outside

the scope of the appeal waiver. Id. at 1146-47. We noted that the stat-

ute authorizing restitution limited such relief only for losses traceable

to a defendant’s offense of conviction, and the crime for which

Broughton-Jones was convicted — perjury — did not cause any pecu-

niary harm to the restitution victim. Id. at 1147. Again, looking to

Marin, we held that her challenge to the restitution order was outside

the scope of her appeal waiver because it involved a claim that the

sentence was "illegal." Id.

Notwithstanding some rather broad language in those opinions, we

do not believe that the actual holdings of those cases compel the con-

clusion that Blick’s arguments must be considered to be outside the

scope of his appeal waiver, and we decline to extend those holdings

in this case.12 In both of those cases, the errors allegedly committed

by the district courts were errors that the defendants could not have

reasonably contemplated when the plea agreements were executed.

11

On the merits, we affirmed the defendants’ sentences. Although a

defendant certainly can waive the right to counsel at a sentencing pro-

ceeding, see generally Faretta v. California, 422 U.S. 806, 807 (1975)

(holding that a defendant has a right to proceed pro se at trial), we did

not base our decision on that principle. Instead, we held that the district

court did not abuse its discretion in refusing to grant the defendants a

continuance. Attar, 38 F.3d at 733-35.

12

We fail to see under any circumstance how Blick’s "net loss" argu-

ment — which simply goes to the propriety of the Guidelines calculation

— is affected by Marin, Attar, or Broughton-Jones.

16 UNITED STATES v. BLICK

Thus, it was not reasonable (or fair) to say that in agreeing to waive

their appeal rights, the Attar defendants were agreeing to be sentenced

without counsel, or Broughton-Jones was agreeing to be sentenced to

an unauthorized restitution order. That simply was not part of the bar-

gain they struck with the United States.

Blick’s situation is entirely different. Unlike the defendants in

those cases, Blick not only agreed to waive his right to appeal "any

sentence within the maximum provided in the statute of conviction (or

the manner in which that sentence was determined)" on "any ground,"

but he also agreed that he would be sentenced in accordance with the

Guidelines.13 Thus, at the time he entered the plea agreement, both

Blick and the United States expressly contemplated and agreed that

he would be sentenced in exactly the manner in which he was, in fact,

sentenced: the pre-Booker Guidelines system. Although the law

changed after Blick pled guilty, his expectations (as reflected in the

plea agreement) did not. See Bradley, 400 F.3d at 466 ("Bradley’s

willingness to be sentenced under the Guidelines and generally to

waive his right to appeal binds him no less now than it did when he

signed the agreement."). Thus, far from being sentenced "at the whim

of the district court," Blick was sentenced precisely in the manner that

he anticipated. Had Blick desired to retain the right to raise an

Apprendi-type claim (or any sentencing claim) on appeal, he could

have opted not to agree to the appeal waiver.14

V.

"Plea bargains rest on contractual principles, and each party should

receive the benefit of its bargain." United States v. Ringling, 988 F.2d

504, 506 (4th Cir. 1993). Blick knowingly and intelligently agreed to

waive his right to appeal on any ground his sentence and the manner

13

Moreover, Blick stated at his guilty plea hearing that he understood

"that by pleading guilty, the Court may impose the same punishment as

if [he] had been tried and convicted by a court or by a jury."

14

In United States v. Jones, 308 F.3d 425, 427 n.1 (4th Cir. 2002), we

held that the defendant waived his Apprendi claim by raising it in a Rule

28(j) letter rather than in his initial brief. If, as in that case, a defendant’s

inadvertence can operate as a waiver of an Apprendi-type issue, certainly

a defendant’s negotiated appeal waiver can do so.

UNITED STATES v. BLICK 17

in which he was sentenced in exchange for several concessions made

by the United States, and he was sentenced in the manner to which

he agreed. The United States has adhered to its part of the plea bar-

gain. Allowing Blick to appeal on the issues he has raised, under these

circumstances, would unfairly deny the United States an important

benefit of its bargain.15

For all of the foregoing reasons, we hold that Blick’s appeal waiver

is valid and that the issues he has raised on appeal are within the

scope of the waiver. Accordingly, we grant the United States’ motion

and dismiss this appeal.

DISMISSED

MICHAEL, Circuit Judge, dissenting:

Under his plea agreement with the government, George Blick pled

guilty to one count of wire fraud and waived his right to appeal. The

district court made findings of fact under the then-mandatory sentenc-

ing guidelines and sentenced Blick to thirty months in prison.

Because Blick could not have received this sentence based solely on

the facts he admitted in the plea agreement, the sentence was imposed

in violation of his Sixth Amendment rights. See United States v.

Booker, 125 S.Ct. 738 (2005). The majority holds that Blick’s appeal

waiver precludes him from challenging his unconstitutional sentence.

I respectfully dissent because a defendant in this circuit cannot pro-

spectively waive the right to appeal constitutional violations at sen-

tencing. See United States v. Attar, 38 F.3d 727 (4th Cir. 1994).

15

We note also that allowing Blick to appeal under these circumstances

would upset the balance we mandated in Guevera — i.e., the United

States’ implicit agreement to be bound by Blick’s appeal waiver. As the

Sixth Circuit recognized: "Simultaneous waivers of the right to appeal by

two parties to a plea agreement, as here, would amount to little if future

changes in the law permitted the benefitted party nonetheless to appeal."

Bradley, 400 F.3d at 465.

18 UNITED STATES v. BLICK

I.

Blick was a one-third owner and CEO of Enterprise Integration,

Inc. (EII), an information systems consulting firm. In early 2003

Blick was conned by a man claiming to be a Nigerian official who

could, with some help from Blick, embezzle $20.5 million from the

Nigerian government in connection with a government contract. The

man promised to share the booty with Blick if Blick (1) would

advance monies necessary to facilitate the scheme and (2) allow one

of his companies to be designated as "the rightful recipient of the

money." J.A. 96. Blick wired over $2,000,000 to the con artist, fund-

ing the advances in large part with unauthorized withdrawals from

EII’s bank account. Blick repaid some of the money, but by October

2003 so much was missing that EII was in danger of not making pay-

roll. Blick then informed his co-owners about his unauthorized with-

drawals, and his co-owners contacted the authorities. On January 6,

2004, Blick was indicted on seven counts of wire fraud. Blick ulti-

mately entered into a written plea agreement with the government and

pled guilty to one count. The government agreed to dismiss the

remaining counts. The plea agreement included the following appeal

waiver: "the defendant knowingly waives the right to appeal the con-

viction and any sentence within the maximum provided in the statute

of conviction (or the manner in which that sentence was determined)

. . . on any ground whatsoever, in exchange for the concessions made

by the United States in this plea agreement." J.A. 34-35.

On June 6, 2004, after Blick pled guilty but before he was sen-

tenced, the Supreme Court decided Blakely v. Washington, 124 S. Ct.

2531 (2004), which cast doubt on the constitutionality of the sentenc-

ing guidelines. At sentencing the district court made a factual finding

that Blick’s actions resulted in a loss of $655,000 to EII and added

fourteen levels to Blick’s base offense level under the guidelines.

With the fourteen-level enhancement and other adjustments taken into

account, the sentencing range was thirty to thirty-seven months. With-

out the fourteen-level enhancement, the sentencing range would have

been zero to six months. Blick received a thirty-month sentence. He

objected to the enhancement on the grounds that the imposition of a

sentence greater than the maximum authorized by the facts admitted

in the plea agreement was a violation of his Sixth Amendment rights

under Blakely. Blick also moved the court to stay execution of the

UNITED STATES v. BLICK 19

judgment until the resolution of Booker, which was pending before

the Supreme Court at the time of his sentencing. The district court

denied Blick’s motions but told him that if the Supreme Court’s deci-

sion in Booker "affect[ed him]," the court would promptly entertain

a motion to reconsider. J.A. 76. Blick filed an appeal to this court

prior to the Supreme Court’s Booker decision. He argues in his sup-

plemental brief that he is entitled to a remand for resentencing in light

of Booker and United States v. Hughes, 401 F.3d 540, 546 (4th Cir.

2005). The government contends that the appeal waiver bars Blick’s

appeal.

II.

In United States v. Attar we held that a defendant cannot "fairly be

said to have waived his right to appeal his sentence on the ground that

the proceedings following entry of the guilty plea were conducted in

violation of his Sixth Amendment right to counsel, for a defendant’s

agreement to waive appellate review of his sentence is implicitly con-

ditioned on the assumption that the proceedings following entry of the

plea will be conducted in accordance with constitutional limitations."

38 F.3d at 732. We have also held that an appeal waiver "will not bar

appeal of a sentence when the sentence was . . . based on a constitu-

tionally impermissible factor . . . ." United States v. Brown, 232 F.3d

399, 403 (4th Cir. 2000); see also United States v. Broughton-Jones,

71 F.3d 1143, 1147 (4th Cir. 1995) (same), United States v. Marin,

961 F.2d 493, 496 (4th Cir. 1992) (same). Blick’s sentence was based

on a "constitutionally impermissible factor," that is, it was based on

facts found by the district court in violation of the Sixth Amendment.

Likewise, Blick’s sentencing hearing was not "conducted in accor-

dance with constitutional limitations" because judicial factfinding that

subjects a defendant to a sentence greater than that allowed by the

plea bargain or jury verdict alone is unconstitutional. Accordingly,

Attar and Brown prevent a defendant from prospectively waiving his

right to challenge an unconstitutional sentence or sentencing proce-

dure.

Attar’s rule against prospective waiver of the right to appeal consti-

tutional violations at sentencing is consistent with the general rule that

circumscribes the waiver of constitutional rights. "The relevant princi-

ple is well established: a promise [to waive a constitutional right] is

20 UNITED STATES v. BLICK

unenforceable if the interest in its enforcement is outweighed in the

circumstances by a public policy harmed by enforcement of the agree-

ment." Town of Newton v. Rumery, 480 U.S. 386, 392 (1987); see

also id. at 392 n.2. The public policy behind the jury trial right

applied in Booker is the centuries-old policy of "guard[ing] against a

spirit of oppression and tyranny on the part of rulers" and govern-

ments. Booker, 125 S.Ct. at 753 (quoting Apprendi v. New Jersey, 530

U.S. 466, 477 (2000)). This public policy is harmed when enforce-

ment of an appeal waiver agreement results in an unremedied viola-

tion of the jury trial right, a "constitutional [right] of surpassing

importance." Apprendi, 530 U.S. at 476. This harm outweighs the

interest in enforcing the agreement.

It is true that a defendant may waive constitutional rights as part

of his decision to forego a trial. In that context, however, waiver or

"[r]elinquishment derives . . . from the admissions necessarily made

upon entry of a voluntary plea of guilty." United States v. Broce, 488

U.S. 563, 573-74 (1989) (emphasis added). Thus, the waiver of trial

rights in a plea proceeding does not create the same risk of unreme-

died constitutional violations that exists when a defendant waives the

right to appeal from a proceeding that has not yet taken place. For

example, although a defendant waives his Sixth Amendment right to

a jury trial by entering into a plea agreement, his Sixth Amendment

rights are not violated in the plea proceeding. Similarly, if a defendant

decides not to challenge the validity of a search or a confession before

entering into a plea agreement, it is presumed that he has determined

either that his rights were not violated and a challenge would be

pointless or that the suppression of evidence would not significantly

help his case on the merits. In other words, "[a] plea of guilty and the

ensuing conviction comprehend all of the factual and legal elements

necessary to sustain a binding, final judgment of guilt . . . ." Id. at

569. Although trial rights are waived, a defendant’s own admissions

ensure the reliability of the conviction and protect against the dangers

of unremedied constitutional violations.

By contrast, appeal waivers are not based on a defendant’s admis-

sion of guilt. In the context of an appeal waiver, the defendant agrees

not to appeal a sentencing court’s factual, statutory, or constitutional

rulings before they have even been made (presumably in exchange for

a concession by the government). Thus, the defendant’s agreement

UNITED STATES v. BLICK 21

provides no assurance that the court’s subsequent determinations will

be correct or that the sentence or sentencing procedures will be con-

stitutional. We generally permit defendants to waive their right to

appeal factual and legal determinations at sentencing in the interest of

finality, see United States v. Wiggins, 905 F.2d 51, 53-54 (4th Cir.

1990), but Attar establishes that some limits are required. The waiver

of the right to appeal errors in a proceeding that has yet to occur pre-

sents a substantial risk of unremedied constitutional violations that

would "impair[ ] to an appreciable extent . . . the policies behind the

rights involved." Town of Newton, 480 U.S. at 392 n.2. For this rea-

son, Attar wisely held that the waiver of appellate review "is implic-

itly conditioned on the assumption that the proceedings following

entry of the plea will be conducted in accordance with constitutional

limitations." 38 F.3d at 732.

The majority concludes that Attar does not require us to consider

Blick’s constitutional claim because that decision only prevents a

defendant from waiving the right to appeal constitutional errors that

are not "reasonably contemplated when the plea agreement[ ] [was]

executed" or are "not part of the bargain [the defendant] struck with

the United States." Ante at 15-16. Nothing in Attar, however, suggests

that the rule precluding waiver of the right to appeal an unconstitu-

tional sentence is limited to only unforeseen constitutional violations.

Nevertheless, the majority appears to be saying that a defendant can

subject himself to constitutional violations at sentencing so long as

they are reasonably contemplated by the plea agreement. Under this

approach, for example, a defendant could be sentenced without the

assistance of counsel (or even pro se representation) if he consented

to that in the plea agreement. Not only is this prospect disturbing, it

violates the public policy behind the Sixth Amendment right to coun-

sel.

The majority’s analysis ignores a fundamental point: the rule in

Attar and Brown serves to place certain limits on the rights the gov-

ernment can demand that a defendant waive, regardless of the literal

terms of the waiver agreement. The rule that an appeal waiver is con-

ditioned on a constitutional sentencing proceeding is based on the

principle that "a defendant who waives his right to appeal does not

subject himself to being sentenced entirely at the whim of the district

court." Marin, 961 F.2d at 496. Even a defendant who signs a blanket

22 UNITED STATES v. BLICK

appeal waiver "retains the right to obtain appellate review of his sen-

tence on certain limited grounds." Attar, 38 F.3d at 732.

I agree with the majority that Blick’s decision to enter into the plea

agreement was not rendered unknowing or involuntary because of

Booker. "[A] voluntary plea of guilty intelligently made in the light

of the then applicable law does not become vulnerable because later

judicial decisions indicate that the [decision to enter into the] plea

rested on a faulty premise." Brady v. United States, 397 U.S. 742, 757

(1970). Under this rule a defendant may not rely on changes in the

law to mount an attack on the validity of his guilty plea. This princi-

ple has led every other circuit that has addressed the issue to conclude

that a defendant may waive his right to appeal a Booker error. See

ante at 12-13 (collecting cases). In this circuit, however, we must

abide by Attar, which holds that a defendant cannot prospectively

waive the right to appeal constitutional violations at sentencing, even

when the waiver is knowing and voluntary. Thus, while I agree that

Booker does not render Blick’s decision to enter into a plea agreement

involuntary, under Attar his appeal waiver was "implicitly condi-

tioned on the assumption that the [sentencing] proceedings following

entry of [his] plea [would] be conducted in accordance with constitu-

tional limitations." 38 F.3d at 732. Because Blick’s sentence was

enhanced by judge-found facts under a then-mandatory sentencing

scheme, his sentence violated the Sixth Amendment.

The government points out that it made concessions to Blick (drop-

ping six counts, for example) in exchange for his agreement to waive

his appeal rights. Accordingly, the government argues that it would

be denied the benefit of its bargain if Blick is resentenced on the one

count. This is a valid point. Still, Blick’s unconstitutional sentence

cannot stand. I would therefore vacate the sentence and accord the

government the option on remand to withdraw from the plea agree-

ment. If the government withdrew from the plea agreement, both the

agreement and Blick’s guilty plea would be void. The parties would

then start over with the seven-count indictment.