UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4288

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DARUS ZEHRBACH,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Thomas S. Kleeh, District Judge. (1:18-cr-00060-TSK-MJA-1)

Submitted: February 24, 2020 Decided: March 11, 2020

Before AGEE, FLOYD, and THACKER, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

Kristen M. Leddy, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. William J. Powell, United States Attorney, Martinsburg, West Virginia, Jarod J. Douglas, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Darus Zehrbach pled guilty, pursuant to a written plea agreement, to making a false

statement to a federal agent, in violation of

(a)(2) (2018). Zehrbach’s

counsel filed a brief pursuant to Anders v. California,

(1967), conceding that

there are no meritorious issues for appeal outside the scope of Zehrbach’s appellate waiver,

but questioning whether Zehrbach’s sentence is reasonable. Zehrbach filed two pro se

supplemental briefs, in which he asserts actual innocence, among other issues. We ordered

supplemental briefing on the issue of whether the district court procedurally erred by failing

to address the parties’ nonfrivolous arguments for a probationary sentence.

The Government now seeks to enforce the appellate waiver in the plea agreement.

We review de novo the issue of whether a defendant validly waived his right to appeal.

United States v. McCoy,

(4th Cir.), cert. denied,

(2018).

Where, as here, the Government seeks to enforce the appeal waiver and has not breached

the plea agreement, this Court will enforce the waiver if it is valid and the issue being

appealed falls within the waiver’s scope. United States v. Manigan,

(4th

Cir. 2010).

A defendant’s waiver of rights is valid if he entered it knowingly and intelligently.

United States v. Thornsbury,

(4th Cir. 2012). In making this

determination, “we consider the totality of the circumstances, including the experience and

conduct of the defendant, his educational background, and his knowledge of the plea

agreement and its terms.” McCoy,

(internal quotation marks omitted).

Generally, if the district court fully questions a defendant regarding the waiver position

2 during the plea “colloquy and the record indicates that the defendant understood the full

significance of the waiver, the waiver is valid.”

(internal quotation marks omitted).

Upon review of the plea agreement and the transcript of the Rule 11 hearing, we conclude

that Zehrbach knowingly and voluntarily waived his right to appeal and that any challenge

to his sentence falls squarely within the compass of the appellate waiver.

However, the appellate waiver does not bar Zehrbach’s assertion of actual

innocence, which we construe as a challenge to the factual basis for his guilty plea. See

. Because Zehrbach did not move to withdraw his guilty plea, we review the

adequacy of the Fed. R. Crim. P. 11 hearing for plain error. United States v. Lockhart,

(4th Cir. 2020) (en banc). “‘Before entering judgment on a guilty plea, the

[district] court must determine that there is a factual basis for the plea.’” United States v.

Stitz,

(4th Cir. 2017) (quoting Fed. R. Crim. P. 11(b)(3)). To satisfy this

standard, the court “need only be subjectively satisfied that there is a sufficient factual basis

for a conclusion that the defendant committed all of the elements of the offense.”

(internal quotation marks omitted).

We conclude that there is a sufficient factual basis for the plea. Regardless of

whether Zehrbach’s sale of scooters to Iran was legal under the sanctions regime, he was

convicted of making a false statement to a federal officer—lying about where the scooters

were shipped from. Although Zehrbach now claims that his statement was true, this

contradicts his sworn statement at the Rule 11 hearing. See United States v. Lemaster,

(4th Cir. 2005) (“A defendant’s solemn declarations in open court affirming

a plea agreement carry a strong presumption of verity.” (alteration and internal quotation

3 marks omitted)). Moreover, the presentence report identified the specific emails referenced

at the Rule 11 hearing that indicated that Zehrbach did not have the capacity to manufacture

scooters in China as he had stated to federal officers. See United States v. Ketchum,

(4th Cir. 2008) (recognizing “district court may conclude that a factual

basis exists from anything that appears on the record, and it may defer its inquiry until

sentencing” (citation and internal quotation marks omitted)). Accordingly, we affirm

Zehrbach’s conviction.

Pursuant to Anders, we have reviewed the entire record and have found no

meritorious issues for appeal that fall outside the scope of the appeal waiver. We therefore

affirm in part and dismiss in part. This court requires that counsel inform Zehrbach, in

writing, of the right to petition the Supreme Court of the United States for further review.

If Zehrbach requests that a petition be filed, but counsel believes that such a petition would

be frivolous, then counsel may move in this court for leave to withdraw from

representation. Counsel’s motion must state that a copy thereof was served on Zehrbach.

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.

AFFIRMED IN PART, DISMISSED IN PART

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