Beruflich Dokumente
Kultur Dokumente
No. 12-4013
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Claude M. Hilton, Senior
District Judge. (1:11-cr-00116-CMH-1)
Submitted:
Decided:
Rebecca S. Colaw,
REBECCA S. COLAW, P.C., Suffolk, Virginia,
for Appellant. Neil H. MacBride, United States Attorney, Thomas
J. Krepp, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
PER CURIAM:
Thomas J. Ernst appeals his forty-eight-month sentence
and $4,490,966.08 restitution order following a guilty plea to
endeavoring
to
obstruct
the
administration
of
the
Internal
intelligently
waive
his
right
to
appeal;
(2)
his
trial
factual
findings
with
respect
to
his
financial
In the
intelligent
decision
to
forgo
the
right
to
appeal.
United
We review de
1992).
To
intelligent,
determine
we
whether
examine
the
waiver
totality
of
is
the
knowing
and
circumstances,
F.3d
(internal
389,
citation
400
(4th
Cir.
omitted).
2002)
Generally,
if
quotation
court
fully
marks
and
questions
11
colloquy,
the
waiver
is
both
valid
and
enforceable.
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
However, this court will refuse to enforce an otherwise valid
waiver if to do so would result in a miscarriage of justice.
Id. (internal quotation
Ernst asserts
that his waiver was not knowing and intelligent because there
was an underlying mental condition and lack of rationality.
However,
despite
the
fact
that
3
Ernst
was
on
medication
for
depression
at
the
time
of
the
hearing,
nothing
in
the
plea
the
Ernst
court
specifically
provision.
questioned
regarding
the
waiver
by
the
parties
in
the
plea
agreement.
Ernsts
plea
Internal
Revenue
Service
pursuant
to
18
U.S.C.
The
the
imposition
of
$4.49
million
in
restitution
did
not
F.3d 490, 497 (4th Cir. 2006) ([A] defendant who has agreed
[t]o waive knowingly and expressly all rights, conferred by 18
U.S.C. 3742, to appeal whatever sentence is imposed, . . .
has waived his right to appeal a restitution order.).
4
Thus,
Ernsts
challenge
to
the
restitution
order
falls
within
the
from
counsel,
considering
which
are
appellate rights.
claims
not
of
exempt
ineffective
from
even
assistance
valid
waivers
of
of
United
record
before
us
does
not
conclusively
Because
establish
that
mental
condition
or
failing
to
request
mental
now
turn
to
Ernsts
argument
that
the
district
evaluation
and
conduct
competency
hearing.
The
of
right
providing
by
hearings.
due
process,
that
and
Congress
trial
courts
has
may
safeguarded
conduct
this
competency
shall
sua
sponte
order
such
hearing
if
there
is
18 U.S.C. 4241(a).
In
4244(b).
that
the
trial
court
failed
hearing
after
the
petitioner's
mental
issue.
to
hold
competency
competency
was
put
in
doubt
trial.
Id.
regarding
However,
the
a
petitioners
defendant
need
competency
not
to
stand
demonstrate
on
position
incompetency
to
adjudge
constituting
the
reasonable
presence
cause
of
indicia
to
initiate
of
a
Id. at 742-43.
is
not
rational
and
has
trouble
accepting
things.
the
nature
and
consequences
of
the
proceedings
Ernsts
diagnosis
and
treatment
States,
410
F.2d
653,
658
(4th
Cir.
for
See Hall v.
1969)
([T]he
he
has
condition,
psychiatrist
been
fails
diagnosed
to
submit
addressing
his
with
an
additional
affidavits
mental
7
from
health,
mental
his
and
health
treating
fails
to
discretion
by
failing
to
sua
sponte
order
mental
addition,
Ernst
fails
to
establish
that
the
him
and
sentencing
him
while
he
was
incompetent.
Beck v.
Ernst states on
appeal only that he may or may not have been competent in this
matter.
Ernst
restitution
order
based
Government
requests
that
is
precluded
upon
this
his
court
from
appealing
the
waiver,
the
appellate
remand
the
case
for
the
Ernsts
3664(f)(2).
financial
In
condition,
fashioning
8
pursuant
payment
to
18
schedule
U.S.C.
for
restitution
finding
judgment,
keying
the
district
statutory
court
factors
must
make
[listed
in
18
factual
U.S.C.A.
the
district
court
Id.
adopted
the
proposed
keys
[the
defendants]
restitution
schedule
ordered
feasible.
Id. at 717.
financial
or
finds
situation
that
the
to
the
order
is
However,
Ernsts
current
financial
assets
and
fashion
an
Accordingly,
we
affirm
the
judgment
of
conviction,
dismiss the appeal of the restitution order, and remand for the
district court to make factual findings consistent with this
opinion and determine an appropriate payment schedule for the
restitution order.
facts
and
materials
legal
before
contentions
the
court
are
adequately
and
argument
presented
would
not
in
the
aid
the
decisional process.
AFFIRMED IN PART,
DISMISSED IN PART,
AND REMANDED
10