USCA4 Appeal: 23-4557 Doc: 41 Filed: 12/03/2025 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4557

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TIMOTHY MICHAEL DEVER, a/k/a timothy-michael: de vere, a/k/a Timothy Michael Deaver,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, Chief District Judge. (1:22-cr-00072-MR-WCM-1)

Submitted: August 7, 2025 Decided: December 3, 2025

Before WILKINSON, RICHARDSON, and RUSHING, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

ON BRIEF: Eric J. Foster, Asheville, North Carolina, for Appellant. Dena J. King, United States Attorney, Anthony J. Enright, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

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PER CURIAM:

Timothy Michael Dever appeals his convictions and the 120-month sentence

imposed following his guilty plea, pursuant to a written plea agreement, to five counts of

aiding and abetting interstate threatening communication, in violation of

,

875(c). On appeal, Dever argues that his guilty plea is not supported by an adequate factual

basis and that his sentence is procedurally and substantively unreasonable. The

Government has requested that we dismiss Dever’s appeal of his sentence pursuant to the

appeal waiver contained in Dever’s plea agreement.

Beginning with the validity of Dever’s guilty plea, because Dever did not object to

the adequacy of the factual basis before the district court, we review that issue for plain

error. United States v. Stitz,

(4th Cir. 2017). “Under the plain error

standard, [we] will correct an unpreserved error if (1) an error was made; (2) the error is

plain; (3) the error affects substantial rights; and (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United States v. Harris,

(4th Cir. 2018) (citation modified). “In the Rule 11 context, this inquiry means

that [the defendant] must demonstrate a reasonable probability that, but for the error, he

would not have pleaded guilty.” United States v. Sanya,

(4th Cir. 2014)

(citation modified).

A guilty plea is valid if the defendant knowingly, voluntarily, and intelligently

pleads guilty “with sufficient awareness of the relevant circumstances and likely

consequences.” United States v. Fisher,

(4th Cir. 2013) (citation

modified). Before accepting a guilty plea, the district court must conduct a plea colloquy

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in which it ensures that there is a factual basis for the plea. Fed. R. Crim. P. 11(b)(3). The

factual basis requirement “ensure[s] that the court make[s] clear exactly what a defendant

admits to, and whether those admissions are factually sufficient to constitute the alleged

crime.” United States v. Mastrapa,

(4th Cir. 2007) (citation

modified). “The district court possesses wide discretion in finding a factual basis, and it

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.” Stitz,

(citation modified).

Under federal law, one who “aids, abets, counsels, commands, induces or procures”

the commission of a crime “is punishable as a principal.”

(a). To convict a

defendant under a theory of aiding and abetting, the government must prove “that the

defendant (1) took an affirmative act in furtherance of the underlying offense and (2) did

so with the intent of facilitating the offense’s commission.” United States v. Odum,

(4th Cir. 2023) (citation modified). Focusing on the defendant’s state of

mind, “a person aids and abets a crime when (in addition to taking the requisite act) he

intends to facilitate that offense’s commission.” United States v. Oloyede,

(4th Cir. 2019) (citation modified).

To establish a violation of § 875(c), the government must prove “(1) the defendant

knowingly communicate[d] a statement in interstate commerce that (2) contain[ed] a ‘true

threat’ that is not protected by the First Amendment.” United States v. White,

(4th Cir. 2016). The government must also “prove the defendant ‘had some

understanding of his statements’ threatening character,’” in that he at least “‘consciously

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disregarded a substantial risk that his communications would be viewed as threatening

violence.’” In re Rendelman,

, 252 (4th Cir. 2025) (quoting Counterman v.

Colorado,

, 69, 73 (2023)). Upon review, we conclude that the magistrate

judge did not plainly err in finding Dever’s guilty plea to aiding and abetting the charged

violations of § 875(c) was supported by an adequate factual basis.

To the extent Dever seeks to appeal his sentence, the Government asks us to dismiss

the appeal pursuant to the appeal waiver contained in Dever’s plea agreement. “When, as

here, the government seeks to enforce an appeal waiver and has not breached the plea

agreement, we will enforce the waiver if it is valid and if the issue being appealed falls

within its scope.” United States v. Richardson,

, 398 (4th Cir. 2025) (citation

modified). “Whether a defendant knowingly and intelligently agreed to waive his right of

appeal must be evaluated by reference to the totality of the circumstances.” United States

v. Manigan,

(4th Cir. 2010) (citation modified). But a waiver generally

is valid “if a district court questions a defendant regarding the waiver of appellate rights

during the Rule 11 colloquy and the record indicates that the defendant understood the full

significance of the waiver.” United States v. Thornsbury,

(4th Cir.

2012).

Dever does not contest the validity of the appeal waiver, and our review of the Fed.

R. Crim. P. 11 hearing leads us to conclude that the waiver is valid and enforceable. We

further conclude that Dever’s challenges to the reasonableness of his sentence fall squarely

within the waiver’s scope.

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Accordingly, we affirm Dever’s convictions and dismiss the remainder of the

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.

AFFIRMED IN PART, DISMISSED IN PART

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