United States of America v. Matthew Paul Borowski

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4772
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MATTHEW PAUL BOROWSKI,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:12-cr-00131-BO-1)
Submitted: October 29, 2014 Decided: November 5, 2014
Before MOTZ, KING, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
James B. Craven III, Durham, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Phillip A. Rubin, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Matthew Paul Borowski pled guilty, pursuant to a
written plea agreement, to one count of receipt of child
pornography, in violation of 18 U.S.C. § 2252(a)(2) (2012). As
part of the agreement, Borowski waived “all rights, conferred by
18 U.S.C. § 3742, to appeal whatever sentence is imposed,”
except a sentence in excess of the Guidelines range established
at sentencing, and the right to appeal or collaterally attack
his conviction or sentence except for claims of ineffective
assistance of counsel or prosecutorial misconduct. He also
agreed “[t]o make restitution to any victim including any victim
with respect to a Count dismissed as part of the agreement in
whatever amount the Court may order, pursuant to 18 U.S.C.
§§ 3663 and 3663A.” The district court sentenced Borowski below
the advisory Guidelines range to 174 months imprisonment and
ordered him to make restitution in the sum of $8000 to “Cindy,”
a victim whose image was found within his pornography
collection.
Borowski appeals, challenging the restitution order in
light of the Supreme Court’s recent decision in Paroline v.
United States, 134 S. Ct. 1710 (2014). The Government contends
that the appeal waiver forecloses Borowski’s appeal of the
restitution order. For the reasons that follow, we dismiss the
appeal.

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Where the Government seeks to enforce an appeal waiver
and did not breach its obligations under the plea agreement, we
will enforce the waiver if the defendant’s waiver was knowing
and intelligent and the issues raised on appeal fall within the
scope of the agreement. United States v. Copeland, 707 F.3d
522, 528 (4th Cir.), cert. denied, 134 S. Ct. 126 (2013). We
review the validity of an appellate waiver de novo. United
States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010). To
determine whether an appeal waiver is knowingly and
intelligently entered, we examine the totality of the
circumstances, including the defendant’s experience, conduct,
educational background, and familiarity with the agreement’s
terms. United States v. General, 278 F.3d 389, 400 (4th Cir.
2002).
In this case, Borowski concedes that he agreed to an
appeal waiver. He does not assert that the appellate waiver was
not knowing or intelligent, or that his agreement to the waiver
was in any way involuntary. Borowski expressly agreed to waive
the right to appeal his sentence. “An order to pay restitution
is a part of a criminal sentence.” United States v. Grant, 715
F.3d 552, 554 (4th Cir. 2013). The terms of Borowski’s waiver
were “clear and unmistakable.” United States v. Blick, 408 F.3d
162, 169 (4th Cir. 2005). We conclude that the waiver is valid.

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Borowski does not challenge the adequacy of the
court’s advice regarding his appellate waiver, assert that he
did not understand the waiver’s terms, or contend that the
restitution order does not fall within the scope of the appeal
waiver. Rather, he contends that he should not be bound by the
appeal waiver in his plea agreement because, if he had realized
at the time he entered the plea that the Supreme Court would
hear Paroline, he would have insisted that restitution be
excluded from the appeal waiver. This argument is unavailing.
“The law ordinarily considers a waiver knowing,
intelligent, and sufficiently aware if the defendant fully
understands the nature of the right and how it would likely
apply in general in the circumstances — even though the
defendant may not know the specific detailed consequences of
invoking it.” United States v. Thornsbury, 670 F.3d 532, 537
(4th Cir. 2012) (internal quotation marks and alteration
omitted). Additionally, “a party cannot ask to re-bargain the
waiver of his right to appeal because of changes in the law,”
and such changes do not render an otherwise valid plea agreement
unenforceable. Copeland, 707 F.3d at 529 (internal quotation
marks and alteration omitted) (rejecting argument that
subsequent authority in United States v. Simmons, 649 F.3d 237
(4th Cir. 2011) (en banc), rendered appellate waiver
unenforceable); see Blick, 408 F.3d at 169-73 (rejecting

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argument that challenge to sentence under intervening authority
in United States v. Booker, 543 U.S. 220 (2005), was outside
scope of appellate waiver). We conclude that the mere fact
that, at the time of his guilty plea, Borowski failed to
anticipate a Supreme Court decision addressing the calculation
of restitution for victims of child pornography does not render
his waiver unknowing or involuntary or otherwise relieve him of
his appeal waiver.
We have reviewed the record and considered Borowski’s
arguments against enforcement of the waiver, and conclude that
the appellate waiver was knowing, voluntary and therefore,
enforceable. Because restitution is part of the sentence and
Borowski waived his right to appeal his sentence except on
grounds not presented here, we also conclude that the issue he
seeks to raise on appeal is within the scope of the appeal
waiver.
Accordingly, we dismiss Borowski’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

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