                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4573


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

MARY MOONEY,

                    Defendant - Appellant.


Appeal from the United States District Court for the District of South Carolina, at
Beaufort. David C. Norton, District Judge. (9:14-cr-00054-DCN-2)


Argued: December 13, 2018                                    Decided: February 28, 2019


Before WILKINSON, HARRIS, and QUATTLEBAUM, Circuit Judges.


Affirmed in part and dismissed in part by unpublished opinion. Judge Harris wrote the
opinion, in which Judge Wilkinson and Judge Quattlebaum joined.


ARGUED: Joshua Snow Kendrick, KENDRICK & LEONARD, P.C., Greenville, South
Carolina, for Appellant. Derek J. Ettinger, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Sherri A. Lydon, United States
Attorney, Columbia, South Carolina, Jamie Lea Schoen, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PAMELA HARRIS, Circuit Judge:

       Mary Mooney pleaded guilty to knowingly making a false statement to an entity

responsible for accrediting adoption service providers, in violation of 42 U.S.C.

§ 14944(c). But shortly after signing her plea agreement, Mooney moved to withdraw

her plea, arguing that § 14944(c) does not apply to her false statements as a matter of law,

and so she cannot be guilty of violating that provision.        The district court denied

Mooney’s motion, sentenced her to a term of imprisonment, and imposed a restitution

obligation.

       Mooney has now appealed, and the government has moved to dismiss that appeal

based on the appeal waiver in Mooney’s plea agreement. Mooney contends that her

appeal should not be dismissed because her argument – that § 14944(c) does not prohibit

her conduct – implicates the validity of her underlying guilty plea. We agree with

Mooney that her appeal waiver does not foreclose consideration of that argument. On the

merits, however, we disagree with Mooney, and conclude that § 14944(c) does indeed

cover her false statements. And because Mooney’s appeal waiver is otherwise valid, it

forecloses her remaining claims on appeal. Accordingly, we affirm the district court’s

denial of Mooney’s plea-withdrawal motion and Mooney’s resulting conviction, and

dismiss the remainder of her appeal.



                                             I.

                                            A.



                                             2
       Mary Mooney was the executive director of International Adoption Guides

(“IAG”), an organization that provided consulting and logistics services to parents

seeking to adopt children from outside the United States. In 2006, Mooney applied for

accreditation for IAG under the Intercountry Adoption Act of 2000, 42 U.S.C. §§ 14901–

14954, which governs international adoptions. To become accredited under the Act, an

adoption service provider like IAG must apply to an “accrediting entity” designated by

the State Department. See 42 U.S.C. §§ 14902(2), 14922(a). That entity then considers

whether the provider satisfies specific professional requirements. See id. § 14923(b)

(establishing minimum requirements for accreditation); see also 22 C.F.R. §§ 96.29–.55

(outlining additional accreditation requirements).   If accredited, the adoption service

provider must continue to submit annual statements to the accrediting entity, confirming

that it remains in substantial compliance with all relevant requirements. See 22 C.F.R.

§ 96.66(c).

       In this case, Mooney submitted her application on behalf of IAG to the Council on

Accreditation, a designated accrediting entity, and the Council granted Mooney’s

application in 2008.    Shortly after, Mooney agreed to sell IAG to James Harding.

Harding previously had applied for accreditation for his own adoption service

organization, but that application had been denied because Harding lacked the

qualifications required by regulation to run such an organization.       So Mooney and

Harding agreed that once Mooney sold IAG to Harding, Harding would assume day-to-

day control as the executive in charge of IAG’s operations, but Mooney would remain

executive director in name only so that IAG could maintain its accreditation.

                                            3
       Neither Mooney nor Harding notified the Council on Accreditation of this change

in leadership. And in 2010 and 2011, in order to preserve IAG’s accredited status,

Mooney made the statements that eventually formed the basis for the plea at issue in this

appeal: Mooney submitted statements to the Council falsely claiming that she remained

in control of IAG, and that the organization continued to be in substantial compliance

with all applicable regulations – even though Harding, who lacked the required

educational and professional qualifications, actually was in charge.

       The government soon had reason to suspect that Mooney was doing more than

making false statements, and in fact was engaged in a scheme to facilitate fraudulent

adoptions. Specifically, emails between Mooney and her coworkers revealed that IAG

was paying Ethiopian orphanages to sign contracts giving specific children up for

adoption when those children never had lived in the orphanages, and may not even have

been orphans. The government also uncovered evidence that Mooney’s employees then

submitted those false contracts to Ethiopian courts and the U.S. State Department to

expedite the children’s adoptions.

                                            B.

       Based on this evidence, Mooney and three of her coworkers, including Harding,

were indicted for conspiracy to defraud the United States, in violation of 18 U.S.C. § 371.

Harding and another co-defendant pleaded guilty to that conspiracy. 1        But Mooney



       1
         Mooney’s third co-defendant is a foreign national who is thought to be a fugitive
residing in Ethiopia.


                                             4
refused to do so. Instead, shortly before trial, Mooney asked the government if she could

plead guilty to a violation of 42 U.S.C. § 14944(c), which prohibits the making of a false

statement to an accrediting entity in order to obtain or maintain accreditation. 2 The

government agreed that Mooney could plead guilty to that less serious offense, and

provided her with a list of false statements she had made to the Council on Accreditation.

As the basis for her plea, Mooney chose the 2010 and 2011 statements in which she

confirmed that she was executive director of IAG and that IAG was in compliance with

all relevant regulations – when in reality Harding, who lacked the qualifications required

by regulation, had assumed control of the organization. 3

       The government included those statements in an information charging Mooney

with a violation of 42 U.S.C. § 14944(c), and based on that information, Mooney and the

government entered into a written plea agreement.           In the plea agreement, the

government agreed to dismiss the original conspiracy charge, and in exchange, Mooney

agreed to plead guilty to the § 14944(c) violation and to waive her right to appeal her

conviction and sentence.



       2
          Specifically, § 14944(c) imposes criminal penalties on any person who
“knowingly and willfully” violates § 14944(a)(2). 42 U.S.C. § 14944(c). Section
14944(a)(2), in turn, prohibits making a material false statement “intended to influence or
affect . . . a decision by an accrediting entity with respect to the accreditation of an
agency.” Id. § 14944(a)(2)(A).
       3
        Mooney also selected a third statement she made to the Council in 2007: a list of
IAG employees providing adoption services that failed to mention one such employee.
Because the government has conceded that the 2007 statement was not a “false
statement” for purposes of § 14944(c), we do not consider that statement here.


                                             5
       In January 2015, the district court conducted a thorough plea colloquy to

determine whether to accept Mooney’s guilty plea under Federal Rule of Criminal

Procedure 11. During the colloquy, the government reviewed the facts it would prove at

trial: that Mooney made the 2010 and 2011 statements to the Council about IAG’s

compliance with the regulations and that she knew those statements were false. Mooney

agreed that those facts were accurate.

       The court also asked Mooney a series of questions about whether she fully

understood the proceedings, whether she was satisfied with her counsel, whether her

counsel had explained the nature of the charges against her, whether she understood those

charges, and whether she voluntarily signed the plea agreement.       Mooney answered all

of those questions in the affirmative. Finally, the court reviewed the rights that Mooney

waived through her plea agreement, including, specifically, the right to appeal her

conviction and sentence. Mooney confirmed that she both understood and agreed to this

waiver of her appeal rights. Accordingly, the court accepted Mooney’s plea, finding that

it was knowingly and voluntarily made with a basis in fact encompassing all elements of

the § 14944(c) crime.

       Before she was sentenced, Mooney moved to withdraw her plea.             Although

Mooney conceded that the Rule 11 colloquy was properly conducted and comprehensive,

she argued that she was rushed into the plea agreement, leaving her attorney without time

to thoroughly research the elements of a § 14944(c) offense. But now, Mooney argued,

she had discovered that § 14944(c) in fact did not apply to her 2010 and 2011 false

statements, so that her guilty plea was to a non-existent criminal offense.

                                             6
       Mooney’s argument was as follows: When Mooney made her false statements in

2010 and 2011, the Intercountry Adoption Act required accreditation only of those

organizations conducting adoptions under the Hague Convention on Protection of

Children and Co-operation in Respect of Intercountry Adoption. 4 It followed, Mooney

argued, that the prohibition on false statements to accrediting entities laid out in § 14944

applied only to organizations then conducting adoptions in countries that were parties to

the Hague Convention. And, Mooney finished, because IAG provided adoption services

in 2010 and 2011 only in connection with two countries that were not parties to the

Hague Convention and thus did not require accreditation – Ethiopia and Kazakhstan – her

false statements to her accrediting entity could not constitute violations of § 14944(c).

       After a hearing, the district court denied Mooney’s motion to withdraw her plea,

rejecting Mooney’s argument that § 14944(c) did not apply to her false statements. The

district court recognized that when Mooney made her false statements, she may not have

been required to seek accreditation for IAG. But, the district court explained, “the fact

remains that [Mooney] did seek accreditation (regardless of whether it was required).”

J.A. 153. And once Mooney applied for accreditation, § 14944 “plainly made it a crime”

to make false statements to her accrediting entity in order to influence its decision. Id.




       4
         An adoption falls under the Hague Convention if it is “an adoption of a child
resident in a foreign country party to the Convention by a United States citizen, or an
adoption of a child resident in the United States by an individual residing in another
Convention country.” 42 U.S.C. § 14902(10).


                                             7
The district court thus found no basis to permit Mooney to withdraw her plea, and denied

her motion.

         The district court eventually sentenced Mooney to 18 months’ imprisonment and

three years’ supervised release, and imposed a restitution obligation of $223,964.04.

Shortly after sentencing, Mooney filed this appeal, challenging the district court’s denial

of her motion to withdraw her guilty plea as well as the court’s sentence and restitution

order.



                                            II.

                                            A.

         We begin with Mooney’s appeal of the district court’s denial of her motion to

withdraw her guilty plea.      The government contends that this challenge must be

dismissed before we reach its merits because Mooney waived her right to appeal in her

plea agreement. We disagree. It is undisputed that Mooney’s plea agreement includes a

waiver of Mooney’s right to appeal her conviction. But that does not end the matter,

because when a defendant challenges the denial of a motion to withdraw her guilty plea,

as Mooney does here, “a waiver of appeal rights in a plea agreement will not bar

appellate review” if “the plea-withdrawal motion incorporates a colorable claim that the

plea agreement itself – and hence the waiver of appeal rights that it contains – is tainted

by constitutional error.” United States v. Attar, 38 F.3d 727, 733 n.2 (4th Cir. 1994)

(emphasis omitted).



                                            8
       Mooney’s motion to withdraw her plea meets that standard, raising a colorable

claim that her plea was constitutionally infirm. The primary contention in support of

Mooney’s motion is that no one – not her counsel, not the government, and not the court

– understood or informed her that § 14944(c), correctly interpreted, does not criminalize

the false statements that were the basis for her guilty plea. That is enough to call into

question the constitutional validity of that plea. A guilty plea is constitutionally sound

only to the extent that it is “voluntary” and “intelligent,” and “a plea does not qualify as

intelligent unless a criminal defendant first receives real notice of the true nature of the

charge against [her].” Bousley v. United States, 523 U.S. 614, 618 (1998) (internal

quotation marks omitted). If a criminal defendant is not correctly informed as to “the

essential elements of the crime” to which she pleads guilty – and so pleads guilty based

on conduct that in fact does not satisfy those elements – then her plea is constitutionally

invalid. Id. at 618–19. Because Mooney has advanced a colorable claim that, if correct,

would “taint[] [with] constitutional error” her guilty plea and the appeal waiver it

contains, Attar, 38 F.3d at 733 n.2, that appeal waiver does not bar our review of

Mooney’s challenge to the denial of her plea-withdrawal motion.

                                            B.

       On the merits, however, Mooney cannot succeed. The crux of Mooney’s claim, as

noted above, is that the district court should have permitted her to withdraw her guilty

plea because she did not understand, at the time the plea was entered, that § 14944(c) as a

matter of law did not prohibit her false statements. Because we agree with the district



                                             9
court that § 14944(c) in fact does apply to Mooney’s conduct, we affirm the district

court’s denial of Mooney’s plea-withdrawal motion and Mooney’s resulting conviction. 5

       Section 14944(c) makes it a crime to lie to an accrediting entity – like the Council

on Accreditation – in order to obtain or maintain accreditation.            See 42 U.S.C.

§§ 14944(a)(2)(A), (c). Specifically, § 14944(c) subjects to criminal penalties any person

who “knowingly and willfully” makes a material false statement “intended to influence or

affect . . . a decision by an accrediting entity with respect to the accreditation of an

agency . . . under subchapter II” of the statute at issue here. Id. Subchapter II, in turn,

describes the procedures accrediting entities follow and the standards they apply in

deciding whether to grant new accreditations or maintain old ones. 6 Taken together,

these provisions make clear that once an individual like Mooney decides to invoke the

accreditation process described in subchapter II, it is a crime for that individual to lie to

the accrediting entity.



       5
        Mooney also argues briefly that she is factually innocent of the § 14944(c) crime
to which she pleaded guilty because the statements she made to the Council on
Accreditation were not false. But during the district court’s comprehensive Rule 11 plea
colloquy, Mooney agreed that her 2010 and 2011 statements to the Council were false,
and that she knew they were false when she made them. Mooney cannot now overcome
those admissions “by merely contradicting inculpatory statements made during the Rule
11 plea hearing or by arguing that facts that were known to [her] at the time of the plea
negate [her] guilt.” United States v. Thompson-Riviere, 561 F.3d 345, 353 n.6 (4th Cir.
2009).
       6
         See 42 U.S.C. § 14922 (describing the process for accreditation and approval and
the role of accrediting entities); id. § 14923 (explaining the minimum standards agencies
must meet to obtain accreditation); id. § 14924 (describing the Secretary of State’s
oversight of the accreditation process).


                                             10
      That is precisely what Mooney did here. Mooney chose to apply for accreditation

on behalf of IAG in 2006. And once she received that accreditation, she made false

statements to the Council in order to maintain it. Specifically, in 2010 and 2011, Mooney

told the Council that IAG was in substantial compliance with relevant regulations and

that she was in charge of the organization – even though she knew that an individual who

lacked the required educational and professional qualifications in fact had assumed

control. That is all that is necessary to bring Mooney’s conduct within the ambit of

§ 14944(c).

      Mooney argues, as described above, that § 14944(c)’s criminal prohibition on

false statements does not apply to her 2010 and 2011 statements because she was not at

that time active in Hague Convention countries, and so not required by law to accredit her

organization. But nothing in the text of § 14944(c) limits its application to false

statements made in connection with a mandatory accreditation.           The Intercountry

Adoption Act allows any agency to apply for accreditation, regardless of whether

accreditation is legally required. And under the plain and broad terms of § 14944, “[a]ny

person” who makes a false statement to influence the decision of an accrediting entity is

subject to criminal penalties. 42 U.S.C. §§ 14944(a)(2)(A), (c) (emphasis added). As the

district court explained, what matters under § 14944(c) is not whether Mooney was

required to seek accreditation; what matters is that she did seek accreditation, and then

made false statements to maintain that accreditation.

       Contrary to Mooney’s suggestion, there is nothing anomalous about this result. As

both Mooney and Harding acknowledged during their criminal proceedings, adoption

                                            11
service providers may choose to seek accreditation even if they are not required to do so,

in part because prospective clients may insist on such accreditation. Indeed, many of the

families who were victims of Mooney’s scheme attested that they would not have hired

IAG to facilitate their international adoptions had the organization not been accredited.

Whether or not they are legally required, fraudulently obtained accreditations can be used

to solicit unwitting victims, and Congress had perfectly sensible cause to prohibit such

fraud by any person seeking accreditation.

       For her contrary reading of the statute, Mooney relies primarily on the fact that the

relevant text of § 14944 references “subchapter II” – prohibiting false statements

intended to influence an accrediting entity’s decision “with respect to the accreditation of

an agency . . . under subchapter II,” 42 U.S.C. § 14944(a)(2)(A) – and that subchapter II,

in turn, includes the provision requiring accreditation for agencies facilitating Hague

Convention adoptions, see id. § 14921(a)(1). We can infer from that, Mooney argues,

that Congress intended the bar on false statements in § 14944(c) to apply only to false

statements made by organizations providing Hague Convention adoptions. But there is

no basis for that inference.    When Congress wanted to limit the provisions of the

Intercountry Adoption Act to Hague Convention adoptions, it said so directly; for an

example, we need look no further than § 14944 itself, which includes a subsection

prohibiting false statements in connection with the relinquishment of parental rights that

is expressly limited to “case[s] subject to the [Hague] Convention,” id. § 14944(a)(2)(B).

The reference to “accreditation . . . under subchapter II,” by contrast, captures the whole



                                             12
of subchapter II, which lays out in detail the process and standards for accreditation that

Congress chose to protect from the influence of false or fraudulent statements.

       Mooney also points to the Intercountry Adoption Universal Accreditation Act of

2012, 42 U.S.C. § 14925, under which all agencies conducting intercountry adoptions –

and no longer only agencies operating in Hague Convention countries – are required to

obtain accreditation. According to Mooney, because Congress decided in 2012 that

accreditation-related provisions applicable only to Hague Convention adoptions

henceforth should apply to all intercountry adoptions, the rough inverse must also be true:

Before 2012, when she made her false statements, the general prohibition on

accreditation fraud must have applied only to Hague Convention adoptions. We fail to

see why this would be so. To the extent certain of the Intercountry Adoption Act’s

provisions were limited to organizations facilitating Hague Convention adoptions – like,

for instance, § 14944(a)(2)(B)’s prohibition on false statements regarding the

relinquishment of parental rights, discussed above – then the Universal Accreditation Act

clarifies that they now apply to all intercountry adoptions. See 42 U.S.C. § 14925(a).

And to the extent the Intercountry Adoption Act’s provisions already extended beyond

Hague Convention adoptions – like the prohibition on false statements intended to

influence accreditation that is at issue in this case – then they continue to do so under the

Universal Accreditation Act.

       In sum, the district court correctly held that § 14944(c) prohibits the making of a

false statement to an accrediting entity to influence the accreditation decision, regardless

of whether that accreditation is legally required. Mooney admitted that she committed

                                             13
that crime during the district court’s extensive Rule 11 plea colloquy, when she agreed

that she lied in her 2010 and 2011 statements to the Council on Accreditation. Because

Mooney correctly understood that § 14944(c) applied to her conduct when she entered

her guilty plea, the district court did not err in denying her motion to withdraw that plea.

Accordingly, we affirm both the district court’s denial of the plea-withdrawal motion and

Mooney’s resulting conviction.



                                            III.

       Mooney also seeks to appeal her sentence and restitution obligation. Again, the

government moves to dismiss these challenges based on Mooney’s appeal waiver. This

time, we agree with the government, and so we dismiss these portions of Mooney’s

appeal.

       We will enforce an appeal waiver, and dismiss an appellant’s challenges, if the

waiver “is valid and the issue appealed is within the scope of the waiver.” United States

v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013) (internal quotation marks omitted).

Mooney’s only attack on the validity of her appeal waiver is her argument that her

conduct fell outside the scope of § 14944(c), and we have rejected that argument. The

only remaining question is whether Mooney’s sentencing and restitution claims fall

within the scope of that valid waiver.

          We conclude that they do. In her plea agreement, Mooney agreed to make full

restitution, and waived her right “to contest either the conviction or the sentence in any

direct appeal,” J.A. 52–53. Although we have recognized that a “narrow class” of

                                            14
sentencing and restitution challenges can fall outside the scope of such a broad waiver,

United States v. Blick, 408 F.3d 162, 171 (4th Cir. 2005) (internal quotation marks

omitted), Mooney’s challenges do not fall within that class. Accordingly, we dismiss

Mooney’s appeal of her sentence and restitution obligation.



                                          IV.

      For the foregoing reasons, we affirm the district court’s denial of Mooney’s plea-

withdrawal motion and Mooney’s resulting conviction, and dismiss the remainder of her

appeal.

                                       AFFIRMED IN PART AND DISMISSED IN PART




                                           15
