US v. Matthew Borowski, No. 13-4772 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4772 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MATTHEW PAUL BOROWSKI, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, District Judge. (7:12-cr-00131-BO-1) Submitted: October 29, 2014 Decided: November 5, 2014 Before MOTZ, KING, and WYNN, Circuit Judges. Dismissed by unpublished per curiam opinion. James B. Craven III, Durham, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. MayParker, Phillip A. Rubin, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Matthew written plea Paul Borowski agreement, to pled one guilty, count of pursuant receipt to of a child pornography, in violation of 18 U.S.C. § 2252(a)(2) (2012). As part of the agreement, Borowski waived “all rights, conferred by 18 U.S.C. § 3742, to appeal whatever sentence is imposed,” except a sentence in excess of the Guidelines range established at sentencing, and the right to appeal or collaterally attack his conviction assistance of or sentence counsel or except for prosecutorial claims of ineffective misconduct. He also agreed “[t]o make restitution to any victim including any victim with respect to a Count dismissed as part of the agreement in whatever amount the §§ 3663 and 3663A.” Court may order, pursuant to 18 U.S.C. The district court sentenced Borowski below the advisory Guidelines range to 174 months imprisonment and ordered him to make restitution in the sum of $8000 to “Cindy,” a victim whose image was found within his pornography collection. Borowski appeals, challenging the restitution order in light of the Supreme Court’s recent decision United States, 134 S. Ct. 1710 (2014). that the appeal restitution order. waiver forecloses in Paroline v. The Government contends Borowski’s appeal of the For the reasons that follow, we dismiss the appeal. 2 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 defendant’s waiver was knowing and intelligent and the issues raised on appeal fall within the scope of the agreement. United States v. Copeland, 707 F.3d 522, 528 (4th Cir.), cert. denied, 134 S. Ct. 126 (2013). review the validity of an appellate waiver de novo. States v. Manigan, whether determine 592 an F.3d 621, appeal 626 (4th waiver intelligently entered, we examine circumstances, including the defendant’s educational terms. background, and is the familiarity Cir. United 2010). To knowingly and totality experience, with We the of the conduct, agreement’s United States v. General, 278 F.3d 389, 400 (4th Cir. 2002). In this case, Borowski concedes that he agreed to an appeal waiver. He does not assert that the appellate waiver was not knowing or intelligent, or that his agreement to the waiver was in any way involuntary. Borowski expressly agreed to waive the right to appeal his sentence. “An order to pay restitution is a part of a criminal sentence.” United States v. Grant, 715 F.3d 552, 554 (4th Cir. 2013). were “clear and unmistakable.” 162, 169 (4th Cir. 2005). The terms of Borowski’s waiver United States v. Blick, 408 F.3d We conclude that the waiver is valid. 3 Borowski does not challenge the adequacy of the court’s advice regarding his appellate waiver, assert that he did not understand the waiver’s terms, or contend that the restitution order does not fall within the scope of the appeal waiver. Rather, he contends that he should not be bound by the appeal waiver in his plea agreement because, if he had realized at the time he entered the plea that the Supreme Court would hear Paroline, he would have insisted excluded from the appeal waiver. “The intelligent, law and restitution be This argument is unavailing. ordinarily sufficiently that considers aware if a waiver the knowing, 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 consequences of invoking it.” (4th Cir. omitted). United States v. Thornsbury, 670 F.3d 532, 537 2012) (internal quotation marks and alteration Additionally, “a party cannot ask to re-bargain the waiver of his right to appeal because of changes in the law,” and such changes do not render an otherwise valid plea agreement unenforceable. marks and Copeland, 707 F.3d at 529 (internal quotation alteration omitted) (rejecting argument that subsequent authority in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) unenforceable); see (en banc), Blick, 408 4 rendered appellate F.3d 169-73 at waiver (rejecting argument that challenge to sentence under intervening authority in United States v. Booker, 543 U.S. 220 (2005), was outside scope of appellate waiver). that, at the time of his We conclude that the mere fact guilty plea, Borowski failed to anticipate a Supreme Court decision addressing the calculation of restitution for victims of child pornography does not render his waiver unknowing or involuntary or otherwise relieve him of his appeal waiver. We have reviewed the record and considered Borowski’s arguments against enforcement of the waiver, and conclude that the appellate enforceable. Borowski waiver was knowing, voluntary and therefore, Because restitution is part of the sentence and waived his right to appeal his sentence except on grounds not presented here, we also conclude that the issue he seeks to raise on appeal is within the scope of the appeal waiver. Accordingly, dispense with contentions are oral we dismiss argument adequately Borowski’s because presented in the the appeal. facts We and legal materials before this court and argument would not aid the decisional process. DISMISSED 5
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