United States v. Joseph Francis Shea, A/K/A Diamond Joe

25 F.3d 1042 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Joseph Francis SHEA, a/k/a Diamond Joe, Defendant-Appellant. No. 93-5850. United States Court of Appeals, Fourth Circuit. Submitted April 21, 1994. Decided May 31, 1994. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. J. Calvitt Clarke, Jr., Senior District Judge. (CR-93-55-N). William H. Swan, III, Sadler & Swan, Norfolk, VA, for appellant. Helen F. Fahey, U.S. Atty., Kevin M. Comstock, Asst. U.S. Atty., Norfolk, VA, for appellee. E.D.Va. DISMISSED. Before ERVIN, Chief Judge, MICHAEL, Circuit Judge, and CHAPMAN, Senior Circuit Judge. OPINION PER CURIAM: [1] Joseph Francis Shea pled guilty to robbery by force in violation of 18 U.S.C.A. Sec. 1951 (West 1984), 18 U.S.C.A.Sec. 2 (West 1969), and to using and carrying a firearm in a crime of violence, in violation of 18 U.S.C.A. Sec. 924(c) (West Supp.1994). He was sentenced to a term of eighty-seven months for the robbery, with a consecutive five-year sentence for the Sec. 924(c) conviction. Through counsel, Shea appeals the sentence imposed, raising four issues. Shea also seeks permission to file a pro se supplemental brief.* We grant the motion to file a supplemental brief. The government asserts that the appeal is foreclosed by Shea's waiver of his appeal rights. Because we find that Shea waived his right to appeal, we dismiss the appeal without reaching any of the issues raised. [2] Shea's plea agreement provided that he waived the right to appeal any sentence within the statutory maximum "on any ground whatever." This provision was pointed out to him by the district court at the Fed.R.Crim.P. 11 hearing. A defendant may waive his statutory right to appeal his sentence if the waiver is knowing and voluntary. United States v. Marin, 961 F.2d 493, 496 (4th Cir.1992). Shea does not contend that his waiver was unknowingly or involuntarily made, and the record does not reveal any basis for finding that it was not a valid waiver. [3] We therefore dismiss the appeal. 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. [4] DISMISSED. Footnotes [-s] * The issues raised in the main brief are: amount of loss; sentence not concurrent with previously imposed sentences; allegedly invalid prior conviction counted for criminal history; restitution improperly imposed. The issues raised in the pro se brief are: consecutive sentence constituted departure without notice; restitution; ineffective assistance of counsel