Filed: Jan. 19, 2012
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4135 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DENNIS R. MIRACLE, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. James P. Jones, District Judge. (2:10-cr-00010-jpj-pms-1) Submitted: October 11, 2011 Decided: January 19, 2012 Before KING, SHEDD, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Dana R. Cormier, DANA R.
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4135 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DENNIS R. MIRACLE, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. James P. Jones, District Judge. (2:10-cr-00010-jpj-pms-1) Submitted: October 11, 2011 Decided: January 19, 2012 Before KING, SHEDD, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Dana R. Cormier, DANA R. ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4135
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DENNIS R. MIRACLE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones,
District Judge. (2:10-cr-00010-jpj-pms-1)
Submitted: October 11, 2011 Decided: January 19, 2012
Before KING, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dana R. Cormier, DANA R. CORMIER, PLC, Staunton, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, Steven
Randall Ramseyer, Assistant United States Attorney, Abingdon,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dennis R. Miracle appeals his conviction for
possession of a firearm by a convicted felon in violation of 18
U.S.C. § 922(g)(1) (2006), driving under the influence in
violation of 36 C.F.R. § 4.23(a), and driving with a suspended
license in violation of 36 C.F.R. § 4.2. Miracle pleaded guilty
pursuant to a plea agreement and was sentenced to a cumulative
term of imprisonment of ninety-six months.
The Government moved to dismiss Miracle’s appeal on
the basis of the appellate waiver in his plea agreement. Where
the Government seeks to enforce an appeal waiver and there is no
claim that it breached its obligations under the plea agreement,
we will enforce the waiver if the record establishes that
(1) the defendant knowingly and intelligently agreed to waive
the right to appeal; and (2) the issue being appealed is within
the scope of the waiver. United States v. Blick,
408 F.3d 162,
168 (4th Cir. 2005). We find that Miracle’s appellate waiver
extended only to an appeal of his sentence; thus, the issues he
raises on appeal are not barred by the waiver. The scope of the
provision is not clear from its text and, more importantly, at
Miracle’s plea hearing, the Government and the district court
represented it as a waiver only of Miracle’s right to appeal his
sentence. Therefore, we deny the Government’s motion to
dismiss.
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Miracle challenges his guilty plea with a claim that
the Government did not support his plea agreement with adequate
consideration. The Government agreed to dismiss two pending
charges in exchange for Miracle’s guilty plea. Miracle argues
that the possible punishment for the dismissed charges was not
proportional to the punishment imposed for the charges to which
he pleaded guilty. We do not concern ourselves with such review
of proportionality of punishments. Miracle agreed to plead
guilty to three charges in return for the dismissal of two
additional charges. Both parties kept their promises. We will
not disturb the bargain because Miracle, in hindsight, views it
as lopsided. We find that Miracle’s plea agreement was
supported by adequate consideration.
Miracle’s other appellate argument is that his
conviction was not supported by a factual basis because he did
not admit his conduct. “Before entering judgment on a guilty
plea, the court must determine that there is a factual basis for
the plea.” Fed. R. Crim. P. 11(b)(3). Miracle did not move the
district court to withdraw his guilty plea; thus, this court
reviews the Rule 11 hearing for plain error. United States v.
Martinez,
277 F.3d 517, 525-26 (4th Cir. 2002). “To establish
plain error, [Miracle] must show that an error occurred, that
the error was plain, and that the error affected his substantial
rights.” United States v. Muhammad,
478 F.3d 247, 249 (4th Cir.
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2007). Even if Miracle satisfies these requirements,
“correction of the error remains within our discretion, which we
should not exercise . . . unless the error seriously affect[s]
the fairness, integrity, or public reputation of judicial
proceedings.”
Id. (internal quotation marks omitted). To find
a factual basis, a court “need only be subjectively satisfied
that there is a sufficient factual basis for a conclusion that
the defendant committed all of the elements of the offense.”
United States v. Mitchell,
104 F.3d 649, 652 (4th Cir. 1997). A
court “may conclude that a factual basis exists from anything
that appears on the record.” United States v. DeFusco,
949 F.2d
114, 120 (4th Cir. 1991).
Miracle testified that he had no memory of the day in
question, but pleaded guilty because he was aware that others
would testify to his actions. He did not contest his guilt.
The district court received ample evidence to support Miracle’s
guilty plea. Moreover, Miracle stipulated in his plea agreement
that a factual basis existed to support his plea. On this
record, we find that the evidence before the district court
clearly established a factual basis for Miracle’s plea. While
it is true that the court did not proclaim that it found that
the plea was supported by a factual basis, we conclude that this
technical omission does not amount to plain error because it did
not affect Miracle’s substantial rights. Because a factual
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basis was actually adduced on the record, we decline to disturb
Miracle’s plea on account of a clerical shortcoming by the
district court.
We therefore deny the Government’s motion to dismiss
and affirm the district court’s judgment. 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
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