US v. Charles Penland, Sr., No. 09-4759 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4759 UNITED STATES OF AMERICA, Plaintiff - Appellee, MARY PENLAND, Party-in-Interest Appellant, and 326 HANSA LANE GREER SC; 4318 EAST NORTH STREET; KENNETH C. ANTHONY, JR., Parties-in-Interest, v. CHARLES W. PENLAND, SR., Defendant Appellant, v. JERRY SAAD, Receiver. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry F. Floyd, District Judge. (7:05-cr-00710-HFF-1) Submitted: February 3, 2010 Decided: March 18, 2010 Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. Mary Penland, Charles W. Penland, Sr., Appellants Pro Se. Deborah Brereton Barbier, Assistant United States Attorney, Columbia, South Carolina; Alan Lance Crick, Assistant United States Attorney, Greenville, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: In March 2006, Charles W. Penland, Sr. ( Penland ), entered into a plea agreement with the Government, in which he pled guilty to conspiracy to distribute cocaine and methamphetamine, in violation of 21 U.S.C. ยง 846 (2006), and two other offenses arising from his involvement in a conspiracy to distribute narcotics. In addition to a negotiated plea of 120 months the imprisonment, parties agreed to a substantial property forfeiture, and the plea agreement itemized the real property, personal property, business entities, and cash assets to be forfeited. This appeal stems from the district court s July 2009 order directing transfer to the United States of the seized assets and the assets generated from the sale of the seized properties. Penland s plea agreement contained a broad waiver-ofrights provision, which included a waiver of Penland s right to appeal the forfeiture order. his plea agreement, his On the same day Penland executed wife, Mary Penland, executed a Forfeiture Agreement and Stipulation ( Stipulation ), in which she agreed to settle all right, title and interest [she] may claim in and to all such properties subject to forfeiture. In exchange, the Government agreed to release to Mary Penland four of the properties identified in 3 the preliminary forfeiture order. At the end of the Stipulation, Mary Penland noted she ha[d] consulted with counsel and ha[d] been fully advised of her rights and options in this matter. The Stipulation was signed by Mary Penland and her attorney. Following execution of the plea agreement and Stipulation, the district court conducted a thorough Fed. R. Crim. P. 11 hearing and accepted Penland s guilty plea. end of Penland, the who plea hearing, informed the the district court that court she At the questioned understood she Mary was relinquishing her right and interest in the forfeited property and that she did so freely. The district order in June 2006. Penland to preliminary 120 court entered a preliminary forfeiture The district court subsequently sentenced months forfeiture imprisonment order into and the incorporated criminal the judgment. Penland filed a notice of appeal of the criminal judgment. In January 2007, the district court issued a final forfeiture order with respect to certain cash assets and vehicles. Penland subsequently noted his appeal of that order. Asserting the appellate waiver in Penland s plea agreement, the Government moved to dismiss Penland s appeal of his convictions and sentence. This court consolidated the two appeals and granted the Government s motion to dismiss Penland s 4 appeal of his sentence and the forfeiture order. denied the motion to dismiss as to Penland s Although we appeal of his convictions, we rejected the proffered ineffective assistance of counsel claim as legally insufficient on the record before us, and affirmed Penland s convictions. See United States v. Penland, Nos. 06-5044, 07-4201, 2007 WL 2985299 (4th Cir. Oct. 15, 2007) (unpublished) In July 2009, the district court entered a final order of forfeiture, directing that the proceeds generated from the sale of the seized properties and the title for any remaining properties be transferred to the United States. appealed. The Penlands In response, the Government filed a motion to dismiss Penland s appeal, arguing the appellate waiver in Penland s plea agreement precludes the appeal. We grant the Government s motion and dismiss Penland s appeal of the final order of forfeiture because the issues raised therein have already been decided in the Government s favor. In concluded adjudicating that voluntarily included Penland s entered appeals of and the waiver against Penland. the case as to Penland s the guilty that the forfeiture direct plea appeal, was and court knowingly waiver-of-rights order, this and provision enforced the These findings constitute the law of issue of the 5 voluntariness, scope, and enforceability of the waiver, and thus those issues will not be reconsidered here. United States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999) ( [T]he doctrine of the law of the case posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. ) (internal quotation marks and alterations omitted); United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (holding that law of the case doctrine forecloses relitigation of issues court ). expressly or Accordingly, impliedly we grant decided the by the Government s appellate motion and dismiss Penland s appeal. The Government s motion to dismiss does not include Mary Penland s appeal of the final order of forfeiture. agreeing to the Stipulation, Mary Penland In unequivocally relinquished all right, title and interest she may have had in the forfeited property. Now, nearly four Penland attempts to disavow the Stipulation. years later, Mary Her arguments do not persuade us to disregard the unambiguous language set forth in the Stipulation. Accordingly, we affirm the final order of forfeiture as it pertains to Mary Penland s interests in the forfeited properties. For the foregoing reasons, we grant the Government s motion and dismiss Penland s appeal. 6 Further, we affirm the forfeiture order as to Mary Penland. 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. DISMISSED IN PART; AFFIRMED IN PART 7