United States of America v. Gerald Mccabe, a/k/a Jerry

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4730
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GERALD MCCABE, a/k/a Jerry,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Richard M. Gergel, District
Judge. (2:12-cr-00547-RMG-2)
Submitted: August 18, 2014 Decided: September 11, 2014
Before GREGORY, AGEE, and THACKER, Circuit Judges.
Dismissed in part, vacated in part, and remanded by unpublished
per curiam opinion.
William L. Runyon, Jr., WILLIAM L. RUNYON, JR. LAW OFFICE,
Charleston, South Carolina, for Appellant. William Nettles,
United States Attorney, Peter T. Phillips, Assistant United
States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Gerald McCabe appeals from his 300-month sentence
imposed after he pled guilty to one count each of conspiracy to
manufacture fifty or more grams of methamphetamine, in violation
of 21 U.S.C. § 846 (2012), and manufacturing methamphetamine on
premises where individuals under the age of eighteen were
present and resided, in violation of 21 U.S.C. § 860a (2012).
McCabe’s plea agreement contained a waiver of his right to
appeal his conviction and sentence, excepting only his right to
assert claims of ineffective assistance or prosecutorial
misconduct. (4th Cir. Dckt. Entry No. 24, Exh. 1 at 10-11).
The indictment against McCabe issued after an explosion and fire
occurred in the apartment where McCabe resided with several
others, and where McCabe and his co-conspirators were believed
to manufacture methamphetamine. The fire killed three
individuals, including McCabe’s co-conspirator’s daughter and
grandson, and Joseph Raeth, McCabe’s sixty-five-year old
neighbor. The district court nonetheless explicitly found at
McCabe’s sentencing that the Government failed to establish by a
preponderance of the evidence that the fire was caused or
accelerated by McCabe’s unlawful conduct.
On appeal, McCabe asserts that in determining an
appropriate sentence, the district court should have considered
the fact that McCabe’s state probation was revoked because of

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his federal convictions. McCabe also asserts that the district
court erred when it ordered him to reimburse half of the cost of
Raeth’s funeral expenses as restitution. The Government has
moved to dismiss the appeal based on the appellate waiver in
McCabe’s plea agreement, and McCabe has filed a pro se motion to
terminate or relieve his counsel and for the appointment of new
counsel. We deny McCabe’s pro se motion and although we deny
the Government’s motion, in part, and vacate that portion of the
district court’s judgment ordering restitution for Raeth’s
funeral expenses, we grant the Government’s motion, in part, and
dismiss the remainder of McCabe’s appeal.
It is well-established that a defendant may waive the
right to appeal if that waiver is “a knowing and intelligent
decision to forgo the right to appeal.” United States v.
Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995) (internal
quotation marks omitted). Whether a defendant has effectively
waived his right to appeal is an issue of law we review de novo.
United States v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014),
pet. for cert. filed, ___ U.S.L.W. ___ (U.S. July 15, 2014) (No.
12-4639). We will enforce the waiver if it is valid and the
issue appealed is within the scope thereof. United States v.
Blick, 408 F.3d 162, 168-70 (4th Cir. 2005).
To determine whether a waiver is knowing and
intelligent, we examine the background, experience, and conduct

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of the defendant. Broughton-Jones, 71 F.3d at 1146. Generally,
if the district court fully questions a defendant regarding the
waiver of his right to appeal during a plea colloquy performed
in accordance with Fed. R. Crim. P. 11, the waiver is both valid
and enforceable. United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005). The issue ultimately is evaluated by reference
to the totality of the circumstances. United States v. General,
278 F.3d 389, 400 (4th Cir. 2002). Waiver of appeal of a
sentence, however, does not bar the appeal of a sentence imposed
in excess of the statutory maximum or a challenge to the
validity of a guilty plea. Id. at 399 & n.4. Furthermore, a
defendant does not waive the right to appeal a sentence based on
a constitutionally impermissible factor such as race, United
States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992), or
proceedings conducted in violation of the Sixth Amendment right
to counsel following the entry of the guilty plea. United
States v. Attar, 38 F.3d 727, 732-33 (4th Cir. 1994).
McCabe does not allege any defects in his plea hearing
and he does not dispute that the proceeding complied with Fed.
R. Crim. P. 11. Rather, McCabe suggests only that the issues he
raises on appeal are not barred by his appeal waiver. However,
McCabe points this court to no authority for his proposition
that the district court’s alleged failure to consider his state
sentence rendered his federal sentence unconstitutional. We

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nonetheless find that this assignment of error implicates no
issues that would be excepted from McCabe’s appellate waiver.
Thus, McCabe may not raise this issue on appeal.
McCabe’s challenge to his restitution order is more
problematic, however. In this regard, it is well established
that “federal courts do not have the inherent authority to order
restitution, but must rely on a statutory source to do so.”
United States v. Davis, 714 F.3d 809, 812 (4th Cir. 2013)
(internal quotation marks and alterations omitted). Thus, “[a]
restitution order that exceeds the authority of the statutory
source is no less ‘illegal’ than a sentence of imprisonment that
exceeds the statutory maximum.” Id. (internal quotation marks
omitted). Accordingly, “appeals challenging the legality of
restitution orders are . . . outside the scope of a defendant’s
otherwise valid appeal waiver.” Broughton-Jones, 71 F.3d at
1147.
Moreover, although McCabe’s failure to challenge his
restitution order in the district court requires us to review
the restitution order for plain error, see Davis, 714 F.3d 815-
16, we have found and corrected plain error after finding that
restitution was ordered to someone who was not a “victim” of the
offense of conviction. See id. at 812-14 (finding plain error
and reversing restitution award where plea agreement did not
mandate restitution to victim and victim’s loss was not caused

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by the specific conduct that was the basis for the offense of
conviction); cf. United States v. Freeman, 741 F.3d 426, 435-39
(4th Cir. 2014) (reversing district court’s restitution order
after abuse of discretion review because “the Government utterly
failed to provide any evidence that the losses sustained by the
purported victims here were caused by the specific conduct
underlying Appellant’s offense of conviction”).
Because McCabe’s plea agreement makes no mention of a
restitution award, and since the district court explicitly found
that the Government did not prove by a preponderance of the
evidence that McCabe’s drug conspiracy caused the apartment fire
that resulted in Raeth’s death, it was plain error for the
district court to order McCabe to reimburse Raeth’s estate for
half the cost of Raeth’s funeral.
Based on the foregoing, we deny the Government’s
motion to dismiss, in part, vacate that portion of the district
court’s judgment ordering McCabe to pay half of Raeth’s funeral
expenses as restitution, and we remand for such other and
further proceedings as may be appropriate. We nonetheless grant
the Government’s motion to dismiss, in part, deny McCabe’s
motion to terminate or relieve counsel and for the appointment

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of new counsel,* and dismiss the remainder of McCabe’s appeal.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED IN PART,
VACATED IN PART,
AND REMANDED
* Because McCabe is represented by counsel who has filed a
merits brief, as opposed to a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), he is not entitled to file a
pro se supplemental brief. See Fed. R. App. P. 28(a), (c)
(permitting appellant to file a formal brief and a reply brief).
Moreover, to the extent McCabe is attempting to raise in his
motion ineffective assistance of counsel claims, ineffective
assistance does not conclusively appear on the record. See
United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008)
(holding that an ineffective assistance of counsel claim is not
cognizable on direct appeal “unless it conclusively appears from
the record that defense counsel did not provide effective
representation”) (internal quotation marks and citation
omitted). To the contrary, since this court has decided to
vacate McCabe’s criminal judgment, in part, and remand to the
district court for further proceedings, appellate counsel has
secured at least partial relief.

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