USCA4 Appeal: 23-4666 Doc: 26 Filed: 02/11/2025 Pg: 1 of 4

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4666

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOSHUA ERVIN CAVE,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Thomas S. Kleeh, Chief District Judge. (2:22-cr-00030-TSK-MJA-1)

Submitted: January 31, 2025 Decided: February 11, 2025

Before WYNN, HARRIS, and RICHARDSON, Circuit Judges.

Dismissed by unpublished per curiam opinion.

ON BRIEF: James R. Fox, FOX LAW OFFICE, PLLC, Hurricane, West Virginia, for Appellant. William Ihlenfeld, United States Attorney, Wheeling, West Virginia, Stephen Warner, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Elkins, West Virginia, for Appellee.

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PER CURIAM:

Joshua Ervin Cave seeks to appeal his sentence after pleading guilty to possession

with intent to distribute “ice” methamphetamine and unlawful possession of a firearm. In

his plea agreement, Cave stipulated that his drug relevant conduct was 338 grams of

methamphetamine that was more than 80% pure (ice). He also waived his right to appeal

his sentence, including “any constitutional challenge to the calculation and imposition of

any term of imprisonment.” On appeal, Cave challenges the district court’s imposition of

a Guidelines-range sentence. In particular, he argues that the disparity in punishment for

“pure” methamphetamine and “mixture” methamphetamine violates his equal protection

and due process rights, because other federal courts are imposing lower sentences. The

Government contends that this appeal is barred by Cave’s valid appeal waiver; and his

appeal issues are also without merit. Cave does not dispute that his appeal waiver is valid

but argues that he did not waive his constitutional claims. We dismiss the appeal.

“When the government invokes an appeal waiver, we enforce it if it is valid and if

the issue being appealed falls within the scope of the waiver.” United States v. Moran,

(4th Cir. 2023) (internal quotation marks omitted). “‘[A]n appellate waiver

is valid if the defendant’s agreement to the waiver was knowing and intelligent.’” United

States v. Toebbe,

, 201 (4th Cir. 2023). “We use traditional principles of

contract law to determine whether an issue falls within the scope of a valid waiver.” United

States v. Carter,

(4th Cir. 2023).

“Still, a defendant who agrees to a valid appellate waiver ‘does not subject himself

to being sentenced entirely at the whim of the district court.’”

at 225 (quoting United

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States v. Marin,

(4th Cir. 1992)). “Rather, a defendant ‘retains the right

to obtain appellate review of his sentence on certain limited grounds.’”

(quoting United

States v. Attar,

(4th Cir. 1994)). “For example, [n]o appeal waiver . . .

can bar a defendant’s right to challenge his sentence as outside a statutorily prescribed

maximum or based on a constitutionally impermissible factor such as race.” Toebbe, 85

F.4th at 202 (internal quotation marks omitted). “In such circumstances, we have

explained, ‘the errors allegedly committed by the district court were errors that the

defendants could not have reasonably contemplated when the plea agreements were

executed.’” Id. (quoting United States v. Blick,

(4th Cir. 2005)).

“[A]s we have observed, the ‘only’ circumstance in which we have ‘declined to

enforce a valid appeal waiver [is] where the sentencing court violated a fundamental

constitutional or statutory right that was firmly established at the time of sentencing.’”

(quoting United States v. Archie,

(4th Cir. 2014)); see also United States

v. McGrath,

, 250-51 & n.2 (4th Cir. 2020) (dismissing a defendant’s due

process claim where allegations did not support “a colorable claim that his sentence was

based on a constitutionally impermissible factor”). “[O]ur jurisprudence clearly indicates

that a defendant’s mere expectation of a lower sentence, even if reasonable, is not a ground

for us to fail to enforce the defendant’s valid appeal waiver.” Toebbe, 85 F.4th at 203.

Upon our review of the record, we conclude that Cave’s appeal waiver is valid, and

the issues he seeks to pursue on appeal fall within the scope of the waiver. We further

conclude that Cave has not established that the district court relied on a constitutionally

impermissible factor in sentencing; that it violated a fundamental constitutional right that

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was firmly established at the time of sentencing under “binding authority” in support of

that right in these circumstances; or that it would be fundamentally unfair or a miscarriage

of justice to enforce his appeal waiver. See Carter,

& n.3; Toebbe, 85 F.4th

at 203; United States v. McKinney,

(4th Cir. 2023).

Accordingly, we dismiss the appeal. We dispense with oral argument because the

facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

DISMISSED

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