US v. Jesse Dorsz, No. 10-4453 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4453 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JESSE DORSZ, a/k/a 3D, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, District Judge. (1:07-cr-00399-JFM-2) Submitted: October 29, 2010 Decided: November 18, 2010 Before DUNCAN, AGEE, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Richard Bardos, SCHULMAN, TREEM, KAMINKOW & GILDEN, P.A., Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, John Walter Sippel, Jr., Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jesse Dorsz appeals his conviction and 210-month sentence for one count of conspiracy to possess with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), (b)(1)(C) (2006), and one count of possession of a firearm in furtherance of a drug trafficking crime in violation Government contained follow, has in we of moved Dorsz s deny 18 to dismiss, plea the U.S.C. §§ 924(c), 2 citing appellate agreement. motion to an For dismiss, (2006). the and we The waiver reasons affirm that the district court s judgment. Dorsz seeks to raise one issue on appeal: that his guilty plea was not voluntary. Specifically, he claims that the Government represented to his counsel that a cooperating witness would testify that Dorsz murdered David Lee to prevent him from testifying before a grand jury. After Dorsz pled guilty, his counsel allegations investigated the murder further and has represented that the witness would not testify against Dorsz as the Government claimed. Dorsz argues that had it not been for the Government s claim that the witness would testify against him, he would have pled not guilty and proceeded to trial. Prior to pleading guilty, Dorsz executed a plea agreement in which he agreed to waive all rights conferred by 18 U.S.C. § 3742 [2006] to appeal whatever sentence is imposed, 2 including any fine, term of supervised release, or order of restitution and any issues that relate to the establishment of the advisory [G]uidelines range[.] Pursuant to a plea agreement, a defendant may waive his appellate rights under 18 U.S.C. § 3742. Wiggins, 905 F.2d 51, 53 United States v. (4th Cir. 1990). A waiver will preclude appeal of a specific issue if the waiver is valid and the issue is within the scope of the waiver. Blick, 408 F.3d 162, 168 (4th Cir. 2005). United States v. Whether a defendant validly waived his right to appeal is a question of law that this court reviews de novo. Id. at 168. The validity of an appeal waiver depends on whether the defendant knowingly and intelligently agreed to waive the right to appeal. Id. at 169 (citation omitted). By encompasses its an plain appeal terms, of the Dorsz s challenge his sentence on appeal. was invalid. Accordingly, the appellate sentence. waiver He only does not Rather, he argues his plea issue he seeks to raise is outside the scope of the appellate waiver, so we deny the motion to dismiss. conclude that We have Dorsz s reviewed claim on the record, appeal is however, without and merit we and further response from the Government is not warranted. Because Dorsz did not move to withdraw his guilty plea in the district court, this court 3 reviews for plain error. United States v. General, 278 F.3d 389, 393 (4th Cir. 2002); United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002). To demonstrate plain error, a defendant must show that: (1) there was an error; (2) the error was plain; and (3) the error affected his substantial Olano, 507 U.S. rights are affected influenced impaired the 725, his 732 if (1993). the to A court defendant s ability rights. United defendant s determines decision evaluate with to v. substantial that plead eyes States the error guilty open the and direct attendant risks of accepting criminal responsibility. United States v. Goins, 51 F.3d 400, 402-03 (4th Cir. 1995) (internal quotation marks omitted); see also Martinez, 277 F.3d at 532 (holding that a defendant must demonstrate that she would not have pled guilty but for the error). Here, Dorsz has not shown that his substantial rights were affected indicated by any (through Government s purported counsel) witness would error. that not he testify At was sentencing, aware against that him, and he the the district court afforded him the opportunity to move to withdraw his guilty plea on that basis. Dorsz repeatedly and emphatically declined to move to withdraw his plea. He cannot now had claim information that he come to would light have sooner. pled We not conclude claim does not withstand plain error review. 4 guilty that this Dorsz s Accordingly, we deny the motion to dismiss and affirm the judgment of the district court. 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. AFFIRMED 5
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