US v. Kim Brandveen, No. 12-4014 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4014 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KIM JENKINS BRANDVEEN, Defendant - Appellant. No. 12-6185 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KIM JENKINS BRANDVEEN, Defendant - Appellant. Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:11-cr-00149-HEH-1) Submitted: June 28, 2012 Decided: Before SHEDD, KEENAN, and DIAZ, Circuit Judges. August 15, 2012 No. 12-4014 affirmed; No. 12-6185 dismissed by unpublished per curiam opinion. Vaughan C. Jones, JOHNSON & JONES, LLP, Richmond, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Michael C. Moore, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Kim Jenkins Brandveen pleaded guilty pursuant to a written plea agreement to tax evasion, in violation of 26 U.S.C. § 7201 (2006). The district court sentenced Brandveen to five years imprisonment and three years supervised release. district court also ordered Brandveen to pay Revenue Service $2,122,897.82 in restitution. the The Internal Brandveen timely appeals the criminal judgment and the restitution order. Brandveen her motion to challenges withdraw restitution ordered. her the district guilty plea court s and the denial of amount of For the reasons that follow, we conclude that the district court did not abuse its discretion in denying Brandveen s motion to withdraw her affirm the criminal judgment. guilty plea, and thus we And, because we agree with the Government that Brandveen s appeal of the restitution order is foreclosed by the valid appeal waiver set forth in her plea agreement, we dismiss her appeal of that order. I. We first consider whether the district court abused its discretion in denying Brandveen s motion to withdraw her guilty plea. Brandveen argues that her attorney, a federal public defender, employed abusive and coercive tactics to induce Brandveen to plead guilty, and thus that her guilty plea was 3 involuntary. The district court rejected this contention after conducting a thorough hearing on the motion. A defendant guilty plea. Cir. 2003) has no absolute right to withdraw a United States v. Bowman, 348 F.3d 408, 413 (4th (internal quotation marks omitted). Once the district court has accepted a defendant s guilty plea, it is within the court s withdraw it. Cir. 2007). discretion whether to grant a motion to United States v. Battle, 499 F.3d 315, 319 (4th This Court closely scrutinizes the Fed. R. Crim. P. 11 colloquy and, if properly conducted, a strong presumption that the plea is final and binding attaches. United States v. Nicholson, 676 F.3d 376, 384 (4th Cir. 2012) (internal quotation marks omitted). Brandveen acknowledges that her claim of coercion is entirely inconsistent with her assertions, under oath, at the Rule 11 hearing, which are presumed to be truthful. States v. Lemaster, 403 F.3d 216, 221-22 (4th See United Cir. 2005) (explaining that, absent compelling evidence to the contrary, the truth of sworn statements made during a Rule 11 colloquy is conclusively comprehensive established ). Rule 11 The hearing in district this court case, conducted taking care a to ensure that Brandveen was knowingly and voluntarily agreeing to plead guilty. The court offered Brandveen many opportunities to report her attorney s allegedly coercive behavior, but she did 4 not avail herself of those chances. Although Brandveen implores us to look beyond the spoken words of the hearing (Appellant s Br. at 12), we will not do so as courts must be able to rely on the defendant s statements made under oath during a properly conducted Rule 11 plea colloquy. LeMaster, 403 F.3d at 221. We therefore presume that Brandveen s guilty plea is valid and binding. Nicholson, 676 F.3d at 384. The inquiry then becomes whether Brandveen established a fair and just reason for withdrawing the plea. Fed. R. Crim. P. 11(d)(2)(B). To aid in this analysis, this Court has announced a six-factor test. Moore, 931 F.2d 245, 248 Id.; see (4th Cir. See United States v. 1991). Under Moore, a district court considers: (1) whether the defendant has offered credible evidence that his plea was not knowing or not voluntary, (2) whether the defendant has credibly asserted his legal innocence, (3) whether there has been a delay between the entering of the plea and the filing of the motion, (4) whether defendant has had close assistance of competent counsel, (5) whether withdrawal will cause prejudice to the government, and (6) whether it will inconvenience the court and waste judicial resources. Id. Although all of the Moore factors should be considered, the critical factor is whether the plea was knowing and voluntary, which again hinges on the Rule 11 colloquy. Faris, 388 F.3d 452, 456 (4th grounds, 544 U.S. 916 (2005). Cir. 2004), United States v. vacated on other We review a district court s 5 denial of a discretion. motion to withdraw a guilty plea for abuse of United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). We have thoroughly reviewed the record in this case, including the transcripts of the Rule 11 hearing and the hearing on Brandveen s motion to withdraw her guilty plea. We discern no abuse of discretion in the court s weighing of the Moore factors or the resulting withdraw her guilty plea. denial of Brandveen s motion to We thus affirm the criminal judgment. II. Brandveen erroneously losses next calculated outside the contends the offense that restitution of the district amount conviction. In by court including response, the Government asserts that Brandveen waived appellate review of the restitution order through the waiver of her right to appeal any sentence within the statutory maximum . . . on the grounds set forth in [18 U.S.C. § 3742 (2006)] or on any ground whatsoever. (J.A. 74). * We agree. A defendant may, in a valid plea agreement, waive the right to appeal her sentence under 18 U.S.C. § 3742. * Citations to the submitted by the parties. J.A. 6 refer to the joint United appendix States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010); United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). This Court reviews the validity of an appellate waiver de novo, and will enforce the waiver if it is valid and the issue appealed is within the scope of the waiver. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). An appeal waiver is valid if the defendant knowingly and intelligently agreed to it. Id. at 169. To determine whether a waiver is knowing and intelligent, this Court examines the background, experience, and conduct of the defendant. United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995). if An appeal waiver is not knowingly or voluntarily made the district court fails to specifically question the defendant concerning the waiver provision . . . during the Rule 11 colloquy and the record indicates that the defendant did not otherwise understand the full significance of the waiver. United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005) (internal quotation marks omitted). issue is evaluated circumstances. by reference Ultimately, however, the to the totality of the United States v. General, 278 F.3d 389, 400 (4th Cir. 2002). The totality of circumstances in this case clearly demonstrates that Brandveen validly waived her right to appeal her sentence. As previously discussed, Brandveen s guilty plea 7 was voluntary, and there is no doubt that Brandveen knowingly agreed to plead guilty, with a full understanding of the terms of the appeal waiver. clear and The language of the plea agreement is unambiguous, and the district court questioned Brandveen to ensure that she had read and understood the plea agreement prior to signing it. The court also discussed the scope of the appeal waiver with Brandveen. We thus hold that the waiver is valid and enforceable as it was knowingly and voluntarily accepted. See Blick, 408 F.3d at 169. The final issue, then, is whether the argument raised on appeal falls within the scope of the waiver. Brandveen acknowledges that the district court had statutory authority to order restitution, but posits that the court exceeded that authority by ordering restitution in an amount that encompassed conduct beyond the offense of conviction. While framed in terms of the court s authority, at its core, Brandveen s argument attacks the district court s factbased determination as to which losses should be included as part of the offense of conviction. Because Brandveen s challenge to what should be included in determining the loss amount does not implicate the court s statutory authority to order restitution, we hold that the asserted falls within the scope of the appeal waiver. v. Cohen, 459 F.3d 490, 498-500 8 (4th Cir. error squarely See United States 2006) (rejecting defendant s attempt to restrict the scope of the offense of conviction to those acts specifically defined by the factual basis of his plea contained in the plea agreement and holding that, because the restitution award was within the scope of the district court s authority, the appellate challenge to the amount of that award was within the ambit of the appeal waiver (internal quotation marks omitted)). We therefore dismiss the appeal of this issue. For the foregoing reasons, we affirm the criminal judgment and we dismiss the appeal of the restitution order. dispense with oral argument because the facts and We legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. No. 12-4014 AFFIRMED No. 12-6185 DISMISSED 9
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