United States of America v. Charles Edgar Ware, a/k/a Edgar Charles Ware

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4727
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES EDGAR WARE, a/k/a Edgar Charles Ware,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. John Preston Bailey,
District Judge. (2:14-cr-00015-JPB-JSK-1)
Argued: October 28, 2015 Decided: November 25, 2015
Before GREGORY, DUNCAN, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
ARGUED: Katy J. Cimino, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Clarksburg, West Virginia, for Appellant. Stephen L. Vogrin,
OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia,
for Appellee. ON BRIEF: Kristen M. Leddy, Research & Writing
Specialist, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Clarksburg,
West Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, Tara N. Tighe, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Charles Edgar Ware pleaded guilty to one count of
possession of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B) & (b)(2). At sentencing, the district court
determined that Ware had a total offense level of 29 and a
criminal history category of II, which would have yielded an
advisory guideline prison term range of 97 to 121 months. After
consideration of the 18 U.S.C. § 3553(a) factors, the district
court imposed an upward variance, resulting in a sentence of 180
months, or almost 50 percent above the top of the advisory
guidelines range. Despite the existence of an appellate waiver
in the plea agreement, Ware attempts to appeal his sentence. We
enforce the appellate waiver and dismiss this appeal.
Ware’s guilty plea was made pursuant to a plea agreement,
memorialized by the parties in a six-page document. In
paragraph eleven of the agreement, Ware consented to waive his
right to appeal his sentence in a post-conviction proceeding,
unless the district court determined that his total offense
level was 31 or greater. At sentencing, the district court made
it unequivocally clear that Ware’s total offense level—after
adjustments for acceptance of responsibility—was 29.
We review the application of an appeal waiver within a plea
agreement de novo. United States v. Blick, 408 F.3d 162, 168
(4th Cir. 2005). It is uncontested that a defendant may waive

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the right to an appeal as part of a valid plea agreement.
United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). Plea
agreements are governed by contract law and we use the
agreement’s plain language as taken in its ordinary sense to
determine the bargain between the parties. United States v.
Jordan, 509 F.3d 191, 195 (4th Cir. 2007). We will generally
enforce such a waiver if the waiver is valid and the issue being
appealed is covered by the waiver. Blick, 408 F.3d at 168. We
may “decline[] to enforce a valid appeal waiver only where the
sentencing court [has] violated a fundamental constitutional or
statutory right that was firmly established at the time of
sentencing,” United States v. Archie, 771 F.3d 217, 223 (4th
Cir. 2014), or if enforcing the waiver “would result in a
miscarriage of justice,” United States v. Johnson, 410 F.3d 137,
151 (4th Cir. 2005) (internal quotation omitted).
Ware does not challenge the validity of the waiver.
Rather, Ware contends that the district court’s sentence exceeds
the scope of the appeal waiver. We disagree.
The district court found that the total offense level was
29 and noted that, since the statutory mandatory minimum was 120
months, “the guidelines call for incarceration of 120 to 121
months.” JA 52. The district court then expressly stated that
it was imposing a sentence “above the guideline range to protect
the public, especially children, from further crime.” JA 68

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(emphasis added). The district court went to great lengths to
explain that Ware’s particular criminal history, victim impact
statements, and other material it reviewed from the presentence
report justified an upward variance from the guidelines range.
In sum, because Ware knowingly and voluntarily entered into
the plea agreement containing a waiver of appellate rights,
because this appeal falls within the scope of the waiver, and
because enforcement of the waiver would not result in a
miscarriage of justice, we conclude that his appellate waiver is
enforceable. We therefore enforce the waiver and dismiss the
appeal.
DISMISSED

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