                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0449n.06

                                            No. 08-4258                                    FILED
                           UNITED STATES COURT OF APPEALS                              Jul 06, 2011
                                FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                                 )
                                                          )        ON APPEAL FROM THE
       Plaintiff-Appellee,                                )        UNITED STATES DISTRICT
                                                          )        COURT FOR THE
v.                                                        )        NORTHERN DISTRICT OF
                                                          )        OHIO
LAWRENCE ALLEN FASSLER,                                   )
                                                          )                           OPINION
       Defendant-Appellant.                               )




BEFORE:        KENNEDY, SILER, and McKEAGUE, Circuit Judges.

       McKeague, Circuit Judge. Lawrence Allen Fassler pled guilty to four counts of a 63-count

indictment and was sentenced to 135 months’ imprisonment and $8,000 in fines. Fassler’s counsel

filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), suggesting that there are no

meritorious issues for appeal, but nonetheless raising a possible claim regarding the district court’s

imposition of fines in light of the statement in Fassler’s presentence report that it appeared Fassler

could not afford to pay any fines. For the reasons that follow, we conclude that Fassler validly

waived his appellate rights in his plea agreement, and we DISMISS Fassler’s appeal.

                                       I. BACKGROUND

       Fassler was charged with the following counts in a 63-count indictment: (1) Count 1 -

conspiracy to possess with intent to distribute and distribution of 100 kilograms or more of

marijuana, in violation of 21 U.S.C. §§ 841 and 846; (2) Counts 52–55 - travel in interstate
No. 08-4258
United States v. Fassler

commerce with the intent to facilitate distribution of marijuana, in violation of 18 U.S.C. § 1952;

(3) Counts 60–61 - money laundering, in violation of 18 U.S.C. § 1956; (4) Count 62 - possession

with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841; and (5)

Count 63 - travel in interstate commerce with the intent to facilitate distribution of cocaine, in

violation of 18 U.S.C. § 1952. Fassler later agreed to plead guilty to Counts 1, 60, 61, and 62 of the

indictment and the government agreed to dismiss the remaining counts. The parties also agreed on

a recommended sentence of 135 months’ imprisonment. Additionally, the plea agreement contained

a waiver of Fassler’s right to appeal, which stated:

       Defendant acknowledges having been advised by counsel of defendant’s rights, in
       limited circumstances, to appeal the conviction or sentence in this case, including the
       appeal right conferred by 18 U.S.C. § 3742, and to challenge the conviction or
       sentence collaterally through a post-conviction proceeding, including a proceeding
       under 28 U.S.C. § 2255. The defendant expressly waives those rights except as
       reserved below. Defendant reserves the right to appeal: (a) any punishment in excess
       of the statutory maximum; (b) any punishment to the extent it represents a sentence
       higher than 135 months. Nothing in this paragraph shall act as a bar to the
       defendant’s perfecting any legal remedies he may otherwise have on appeal or
       collateral attack pertaining to claims of ineffective assistance of counsel or
       prosecutorial misconduct.

       At his change of plea hearing, Fassler stated that he was not under the influence of any drugs

or alcohol and that he had not received any alcohol, drug, or mental health treatment in the last five

years. His counsel and the government’s counsel both agreed that Fassler was competent to enter

his plea. The court fully informed Fassler of the penalties for each of the crimes charged in the

indictment, including the maximum amount of fines that could be assessed for each offense. Fassler

indicated that he understood the nature of the crimes he was charged with, as well as the penalties

for each if convicted of the offenses. Fassler also stated that he had read each paragraph of the plea

                                                -2-
No. 08-4258
United States v. Fassler

agreement and that it accurately reflected his understanding of the agreement made with the

government. He specifically acknowledged that he had waived his right to appeal, excepting only

those reservations in the agreement for a sentence above 135 months or one exceeding the statutory

maximum. Having determined that a factual basis for the plea was provided, the court concluded

that Fassler knowingly and voluntarily waived his rights and accepted Fassler’s plea of guilty.

        At Fassler’s sentencing hearing, the court sentenced Fassler to the recommended sentence

of 135 months’ imprisonment. Although the presentence report (“PSR”) stated that it appeared

Fassler could not afford to pay a fine, the district court imposed a fine of $5,000 on Count 1 and

$3,000 on Count 62. Fassler’s counsel objected to imposition of the fines, and noted the PSR’s

conclusion regarding Fassler’s ability to pay. The court responded that it “appear[ed] that [Fassler]

has some income that as far as [the court] can tell is going to continue to come in on some royalties

or some copyright.” It appears that, while not mentioning it specifically by its title, the court was

referencing a book that Fassler had written and published in 1992 called Busted by the Feds, which

continued to provide him with annual income from its sales, such that Fassler would have income

while incarcerated and thus had a future ability to pay. Fassler then filed a timely notice of appeal.

                                           II. ANALYSIS

        On appeal, Fassler’s counsel filed an Anders brief and a motion to withdraw as appellate

counsel. In the Anders brief, counsel asserts that, after an “exhaustive review” of the record, there

are no meritorious issues for appeal, though counsel does raise the issue of whether the court erred

when it imposed an $8,000 fine, despite the PSR’s conclusion that Fassler did not appear to have an

ability to pay. Counsel also states that regardless of the merit of any claims, Fassler waived his right

                                                 -3-
No. 08-4258
United States v. Fassler

to pursue a direct appeal in his “validly executed binding plea agreement.” Fassler sought and was

granted an extension of time in which to file a supplemental pro se brief, however, he ultimately did

not file a pro se brief. The government also did not file a brief, but explained in a letter that it agreed

with Fassler’s counsel that “Fassler was subject to a knowing and voluntary plea agreement wherein

he waived his right to appeal his conviction and sentence to the extent that the sentence did not

exceed the statutory maximum.”

        We review de novo the question of whether a defendant waived his rights in a valid plea

agreement. United States v. Carey, 602 F.3d 738, 739 (6th Cir. 2010). “‘It is well settled that a

defendant in a criminal case may waive any right, even a constitutional right, by means of a plea

agreement.’” United States v. Calderon, 388 F.3d 197, 199 (6th Cir. 2004) (quoting United States

v. Fleming, 239 F.3d 761, 763–64 (6th Cir. 2001)). However, “[f]or a plea agreement to be

constitutionally valid, a defendant must have entered into the agreement knowingly and voluntarily.”

United States v. Smith, 344 F.3d 479, 483 (6th Cir. 2003). If the agreement is valid, we are “bound

by that agreement and will not review the sentence except in limited circumstances.” Id. (internal

quotation marks omitted).

        Fassler’s plea agreement provided that he “expressly waiv[ed]” his appellate rights, “except

as reserved below.” The plea agreement then reserved only Fassler’s right to appeal “any

punishment in excess of the statutory maximum” and “any punishment to the extent it represents a

sentence higher than 135 months.”1 At his plea hearing, the court complied with Federal Rule of

        1
        It also stated that the agreement was no bar to Fassler’s right to raise claims of ineffective
assistance of counsel or prosecutorial misconduct, neither of which are at issue here.

                                                   -4-
No. 08-4258
United States v. Fassler

Criminal Procedure 11(b) and ensured that Fassler understood and was fully informed about the

terms of the plea agreement, including the appellate waiver. Fassler’s counsel and counsel for the

government both stated that Fassler was competent to enter his plea, and the court concluded that

Fassler was entering his plea knowingly and voluntarily. Fassler has not submitted a pro se brief and

there is no argument before the court that the waiver was not knowingly or voluntarily made, nor

does our review of the record demonstrate any support for such an argument. Thus, we conclude that

the appellate waiver is valid. Moreover, because the fines imposed were well below the statutory

maximum, the exception does not apply and we need not consider the claim raised by Fassler’s

counsel in the Anders brief. Additionally, review of the record demonstrates that there are no other

non-frivolous issues for appeal that fall within the exceptions to Fassler’s appellate waiver.

                                        III. CONCLUSION

          For the reasons stated above, we grant counsel’s motion to withdraw and DISMISS Fassler’s

appeal.




                                                -5-
