UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 98-4386

DAVID J. MERRITT,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Raymond A. Jackson, District Judge.
(CR-97-43)

Submitted: January 18, 2000

Decided: February 11, 2000

Before WIDENER and NIEMEYER, Circuit Judges,
and HAMILTON, Senior Circuit Judge.

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Dismissed in part and affirmed in part by unpublished per curiam
opinion.

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COUNSEL

Charles E. Haden, Hampton, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, Michael R. Smythers, Assistant United States
Attorney, Gregory D. Stefan, Assistant United States Attorney, Nor-
folk, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

On July 2, 1997, a grand jury returned a seventy-seven count
indictment against David J. Merritt charging him with various counts
of mail fraud, perjury, making false declarations, making false state-
ments, and fraudulent transfer. At the conclusion of the Government's
case, the Government agreed to the dismissal of one count for lack of
evidence. The jury returned a verdict of guilty as to the remaining
seventy-six counts on December 9, 1997.

On March 5, 1998, the Government filed a pleading setting forth
its position with respect to sentencing factors. The pleading stated that
"[t]he United States does not object to the presentence report, as
amended." The presentence report ("PSR") to which the United States
referred calculated the guideline range at 63-78 months imprison-
ment. On March 9, the probation officer amended the PSR on new
information and recommended a range of 97-121 months.

On March 10, Merritt waived venue and pled guilty to a six-count
criminal information charging bank and mail fraud relating to conduct
in Florida. As part of the plea agreement, Merritt"waive[d] the right
to appeal any sentence within the maximum provided in the statute(s)
of conviction (or the manner in which that sentence was determined)
. . . for the sentence arising from this plea agreement and the sentence
arising from case number 4:97cr43 [the jury trial], which resulted in
a jury conviction of 76 counts." During Merritt's Fed. R. Crim. P. 11
colloquy, he stated that he understood that he was waiving any right
to appeal his sentence.

On March 25, the Government filed a motion for an upward depar-
ture. At the April 29 sentencing hearing, the district court granted the
upward departure and sentenced Merritt to 140 months imprisonment.
Merritt timely appealed.

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On appeal, Merritt raises three issues concerning his trial--
insufficient indictment, improper denial of motion to sever, and
improper admission of privileged evidence--as well as two sentenc-
ing issues: (1) improper enhancement of his sentence under U.S. Sen-
tencing Guidelines Manual § 2F1.1(b)(7)(B) (1998), because the
financial institution involved was only affected to a minimal degree;
and (2) error in departing upward. The Government contends that
Merritt waived the right to raise all claims in his plea agreement. Mer-
ritt asserts (1) at a minimum, he is entitled to raise non-sentencing
claims; and (2) his plea was involuntary because the Government
never indicated it was considering moving for an upward departure
and his attorney failed to warn him of this possibility.

A defendant may waive the right to appeal if that waiver results
from a knowing and intelligent decision to forgo the right to appeal.
See United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir.
1995). In determining whether a waiver is knowing and intelligent,
this court examines the particular facts and circumstances of the case,
including the background, experience, and conduct of the defendant.
See id.

We find that the record sufficiently shows that Merritt's plea
waiver was knowingly and intelligently made. Merritt, represented by
counsel, signed a written plea agreement that expressly waived the
right to contest his sentence so long as it was within the statutory
maximum. The sentence imposed did not exceed the statutory maxi-
mum, and his only argument against application of the waiver is that
his plea was not knowingly made because he was under the impres-
sion that he would be sentenced under the guideline range outlined in
the most recent PSR. However, the plea agreement specifically stated
that Merritt waived the right to challenge any sentence imposed by
the district court within the statutory maximum, including the manner
in which the sentence is imposed. The agreement also provided that
no one made any promises to Merritt about the sentence he would
receive, that the court was not bound by the recommendations of
counsel or the probation officer, and that Merritt could not withdraw
his plea based on the actual sentence. Thus, we find that Merritt's
waiver was valid.*
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*To the extent Merritt challenges the effectiveness of his counsel dur-
ing plea negotiations, this claim is not properly raised on direct appeal

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However, Merritt's waiver should not be extended past sentencing
issues. Merritt did not expressly waive the right to appeal non-
sentencing issues arising out of the jury verdict in either his plea
agreement or the plea hearing. Thus, while Merritt waived his right
to contest the enhancement to his sentence and the upward departure
granted by the district court, he is entitled to have his remaining
claims considered on the merits.

Merritt first claims that his indictment was insufficient. Counts 1
through 48 alleged an unlawful use of the U.S. mails to further a
scheme to "defraud persons solicited and contracted to perform
repairs and renovations and to provide supplies, materials and ser-
vices . . . and for obtaining money and property from said persons by
means of false and fraudulent pretenses, representations and prom-
ises." Each count charged that Merritt "planned to declare bankruptcy
against his debts . . . thereby fraudulently using the protection of the
Bankruptcy Court to avoid paying his creditors," and that "by declar-
ing bankruptcy [Merritt] intended to keep the old post office property
and operate his restaurant and publishing businesses in disregard of
his lawful debts." All of the counts were identical in their allegations,
except that each count named a different creditor to whom the Notice
of Bankruptcy had been sent.

Merritt contends that the mailings that form the basis for the counts
were not "in furtherance" of the scheme to defraud, as required by 18
U.S.C. § 1341 (1994), because the scheme had already reached fru-
ition at the time of the mailings. Specifically, Merritt maintains that
once he procured the goods and services with no intent to pay, the
fraud was consummated, and the bankruptcy notices were, therefore,
merely incidental and did nothing to induce creditors to provide mate-
rials or services.

The elements of mail fraud are (1) a scheme or artifice to defraud
and (2) use of the mails for (3) the purpose of executing the scheme.
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unless the record discloses conclusively that defense counsel was inef-
fective. See United States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992).
Because the record does not show that Merritt was denied effective assis-
tance of counsel, we will not address his ineffective assistance claim.

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See United States v. Brewer, 528 F.2d 492, 494-95 (4th Cir. 1975).
The issue then is whether the indictment properly alleged that the
mailings were "for the purpose of executing the scheme." We find
that it did. The indictment charged that Merritt induced contractors
and suppliers to provide him items of value on credit with the inten-
tion to file for bankruptcy. Therefore, the filing of the bankruptcy
case was integral to Merritt's scheme. Without the protection of the
bankruptcy action, Merritt would have been vulnerable to liens, judg-
ments, repossessions, and other collection actions. By filing bank-
ruptcy, Merritt caused the notices to be mailed to each of his creditors
advising them of the legal effects of bankruptcy and serving to stop
any collection efforts. Thus, the indictment properly alleges that the
mailings were in furtherance of the scheme, and the district court cor-
rectly denied Merritt's motion to dismiss. See Schmuck v. United
States, 489 U.S. 705, 710-11 (1989) (use of mails need only be inci-
dental to an essential part of scheme); United States v. Brutzman, 731
F.2d 1449, 1454 (9th Cir. 1984) (holding that letters mailed after the
defrauder received money may be in furtherance of fraudulent
scheme).

We have carefully reviewed Merritt's remaining two claims--that
the district court erred in failing to sever certain counts and in admit-
ting privileged evidence--and find them to be without merit based on
the reasoning of the district court. See J.A. at 216-22, 394-99. Based
on the foregoing, we dismiss Merritt's sentencing claims and affirm
his convictions and sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
material before the court and argument would not aid the decisional
process.

DISMISSED IN PART; AFFIRMED IN PART

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