U.S. v. Blick

• Decision Date: 27 May 2005
• Docket Number: No. 04-4887.,04-4887.
• Citation: 408 F.3d 162
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George R. BLICK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

408 F.3d 162

UNITED STATES of America, Plaintiff-Appellee, v. George R. BLICK, Defendant-Appellant.

No. 04-4887.

United States Court of Appeals, Fourth Circuit.

Argued March 18, 2005.

Decided May 27, 2005.

ARGUED: Jeffrey S. Parker, Great Falls, Virginia, for Appellant. Dana James Boente, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Gilbert K. Davis, Davis & Associates, L.L.C., Fairfax, Virginia; James R. Tate, Tate & Bywater, Ltd., Vienna, Virginia, for Appellant. Paul J. McNulty, United States Attorney, Alexandria, Virginia, for Appellee.

Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by published opinion. Judge SHEDD wrote the majority opinion, in which Senior Judge HAMILTON joined. Judge MICHAEL wrote a dissenting opinion.

SHEDD, Circuit Judge.

George R. Blick appeals his 30-month sentence for wire fraud on two grounds: (1) the district court erroneously calculated the loss amount under U.S.S.G. § 2B1.1 in determining his sentencing guideline range, and (2) he should be resentenced in accord with United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The United States has moved to dismiss the appeal based on the appeal waiver in Blick's written plea agreement. Because we find that the appeal waiver is valid and that the issues Blick has raised are within the scope of the waiver, we grant the motion and dismiss this appeal.

I.

In January 2004, Blick was indicted on seven counts of wire fraud. Before trial, Blick and the United States entered into a plea agreement, in which he agreed to plead guilty to Count 5 of the indictment.

A.

The plea agreement contains a statement of facts that Blick agrees establishes his guilt on Count 5 beyond a reasonable doubt. These facts generally show that between March and October 2003, Blick was a principal and one-third shareholder of Enterprise Integration, Inc. ("EII"), a Fairfax, Virginia, information systems consulting business. EII maintained an account at the Bank of America ("the BOA account"). Blick was responsible for EII's accounting and routine business affairs, and he was a signatory on the BOA account.

Between April and September 2003, Blick made unauthorized withdrawals and payments totaling approximately $1,440,000 from the BOA account to fund a personal transaction that was unrelated to EII's business. Count 5 specifically relates to a July 29, 2003, wire transfer of $180,000 Blick made (or caused) from the BOA account to Pratt Morgan, Ltd. in Madrid, Spain. Blick's EII partners were unaware of his unauthorized withdrawals and payments, and Blick believed that they would not have consented if they had known about them.

On July 11, 2003, three days before a new accountant was to begin working at EII, Blick deposited $785,000 into EII accounts to replace his prior unauthorized withdrawals and payments. Blick did not record any withdrawals or payments on EII's books until August 15, 2003. In late August 2003, Blick—without the knowledge or consent of his partners—requested that BOA change the mailing address for EII to a commercial mail receiving business. Blick committed all of these acts for the purpose of executing a scheme to defraud EII.

B.

The plea agreement also contains several provisions related to sentencing. Blick and the United States acknowledged in the plea agreement that the "maximum penalties" for the wire fraud offense charged in Count 5 are "a maximum term of 20 years of imprisonment, a fine of $250,000, full restitution, a special assessment, and three years of supervised release." Blick acknowledged his understanding that the district court had "jurisdiction and authority to impose any sentence within the statutory maximum described above but that the Court [would] determine [his] actual sentence in accordance with the Sentencing Guidelines and Policy Statements."

The parties also agreed that "the actual or intended loss from the scheme to commit wire fraud [for purposes of U.S.S.G. § 2B1.1] is no greater than $655,000," and that Blick "reserves his right to contend he is entitled to a credit against the loss pursuant to Application Note 2(E)."¹ Moreover, Blick agreed to the entry of a restitution order "for the full amount of the victims' losses," and he acknowledged that the United States was then aware that EII was a victim which had suffered a loss of $655,000. The parties further agreed that under appropriate circumstances Blick would be entitled to a three-level sentencing reduction under U.S.S.G. § 3E1.1 for acceptance of responsibility.

In a section of the plea agreement titled "Waiver of Appeal and Review," Blick acknowledged his understanding of his right under 18 U.S.C. § 3742 to appeal the sentence imposed. However, Blick agreed that he "knowingly waives the right to appeal . . . any sentence within the maximum provided in the statute of conviction (or the manner in which that sentence was determined) on the grounds set forth in [§ 3742] or on any ground whatsoever, in exchange for the concessions made by the United States in [the] plea agreement." The United States' concessions included dismissal of the remaining six counts of the indictment and the grant of immunity to Blick from criminal prosecution in the Eastern District of Virginia for the remaining conduct described in the indictment and the stipulated facts.

Blick and his counsel signed the plea agreement. By their signatures, Blick and his counsel represented that Blick had been fully advised concerning the terms of the plea agreement and that his decision to enter into the plea agreement was voluntary.

C.

At the guilty plea hearing, in response to questioning from the district court, Blick stated under oath that he understood his rights and how they would be affected by his guilty plea. Blick also stated that the factual statement in the plea agreement was accurate and that he was entering the plea voluntarily.

The district court also specifically inquired whether Blick had reviewed the plea agreement and whether he understood that in the agreement he was waiving "any right [he] may have to appeal the sentence that may be imposed." Blick answered both questions in the affirmative. Additionally, the district court asked Blick whether he understood "that by pleading guilty, the Court may impose the same punishment as if [he] had been tried and convicted by a court or by a jury." Blick answered, "Yes, sir, I do." Blick likewise indicated in response to questions from the district court that he understood that he could be imprisoned "up to 20 years" and that "any sentence that may be imposed will be affected by the Sentencing Guidelines."

At the conclusion of the hearing, the district court found that Blick "voluntarily and intelligently" entered the plea and that a factual basis supported the plea. Accordingly, the district court accepted the plea and found Blick guilty on Count 5 of the indictment.

II.

Less than one month after Blick pled guilty, but before he was sentenced, the Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In Blakely, the Court considered the constitutionality of the State of Washington's determinate sentencing scheme. Blakely had pled guilty to kidnaping, a felony punishable by a term of not more than 10 years of imprisonment. Other provisions of Washington law, comparable to the federal sentencing guidelines ("Guidelines"), mandated a sentencing range for Blakely of 49 to 53 months, unless the sentencing judge found aggravating facts justifying an exceptional sentence. The sentencing judge found that Blakely had acted with "deliberate cruelty" and therefore sentenced him to 90 months of imprisonment. Id. at 2534.

The Court, applying the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt"), held that the imposition of the sentencing enhancement— which was based solely on the sentencing judge's factual findings—violated Blakely's Sixth Amendment rights because the facts supporting the findings were neither admitted by Blakely nor found by a jury. 124 S.Ct. at 2536-38. The Court thus set aside Blakely's sentence. Id. at 2538. Although the Court expressed no opinion on the effect its decision may have on the Guidelines, see id. at 2538 n. 9, several dissenting Justices expressed concern that Blakely necessarily implied the invalidity of important aspects of the Guidelines. See, e.g., id. at 2550 (O'Connor, J., dissenting); id. at 2561 (Breyer, J., dissenting).²

Shortly after Blakely was decided, we convened en banc in United States v. Hammoud, to consider Blakely's impact. Following that hearing, we entered an order affirming the judgment and holding that Blakely did not operate to invalidate Hammoud's sentence under the Guidelines. United States v. Hammoud, 378 F.3d 426 (4th Cir.2004). We also instructed the district courts in this circuit to continue sentencing criminal defendants in accordance with the Guidelines, but we recommended that they announce, at the time of sentencing, a sentence pursuant to 18 U.S.C. § 3553(a), treating the Guidelines as advisory only. 378 F.3d at 426.

III.

After we decided Hammoud, a probation officer filed a presentence report ("PSR") recommending that Blick's sentencing range was 30-37 months of imprisonment. The probation officer recommended this range based on her conclusion that Blick's criminal history category was I, and his total offense level was 19. In calculating the total offense level, the probation officer began with a base offense level of 6, see U.S.S.G. § 2B1.1(a), and added 14 levels because the total intended loss of Blick's conduct...