                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-4730


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

GERALD MCCABE, a/k/a Jerry,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.     Richard M. Gergel, District
Judge. (2:12-cr-00547-RMG-2)


Submitted:   August 18, 2014             Decided:   September 11, 2014


Before GREGORY, AGEE, and THACKER, Circuit Judges.


Dismissed in part, vacated in part, and remanded by unpublished
per curiam opinion.


William L. Runyon, Jr., WILLIAM L. RUNYON, JR. LAW OFFICE,
Charleston, South Carolina, for Appellant.      William Nettles,
United States Attorney, Peter T. Phillips, Assistant United
States Attorney, Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Gerald        McCabe    appeals       from    his     300-month      sentence

imposed after he pled guilty to one count each of conspiracy to

manufacture fifty or more grams of methamphetamine, in violation

of 21 U.S.C. § 846 (2012), and manufacturing methamphetamine on

premises    where        individuals     under      the     age    of    eighteen    were

present and resided, in violation of 21 U.S.C. § 860a (2012).

McCabe’s    plea    agreement       contained       a    waiver    of    his    right    to

appeal his conviction and sentence, excepting only his right to

assert     claims        of   ineffective         assistance       or     prosecutorial

misconduct.        (4th Cir. Dckt. Entry No. 24, Exh. 1 at 10-11).

The indictment against McCabe issued after an explosion and fire

occurred    in    the     apartment      where     McCabe      resided    with    several

others, and where McCabe and his co-conspirators were believed

to   manufacture          methamphetamine.               The    fire     killed     three

individuals,       including       McCabe’s      co-conspirator’s         daughter      and

grandson,     and        Joseph    Raeth,        McCabe’s       sixty-five-year         old

neighbor.        The district court nonetheless explicitly found at

McCabe’s sentencing that the Government failed to establish by a

preponderance       of    the     evidence       that    the    fire    was    caused    or

accelerated by McCabe’s unlawful conduct.

            On     appeal,      McCabe    asserts        that     in    determining     an

appropriate sentence, the district court should have considered

the fact that McCabe’s state probation was revoked because of

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his federal convictions.          McCabe also asserts that the district

court erred when it ordered him to reimburse half of the cost of

Raeth’s funeral expenses as restitution.                   The Government has

moved to dismiss the appeal based on the appellate waiver in

McCabe’s plea agreement, and McCabe has filed a pro se motion to

terminate or relieve his counsel and for the appointment of new

counsel.    We deny McCabe’s pro se motion and although we deny

the Government’s motion, in part, and vacate that portion of the

district    court’s       judgment   ordering     restitution    for   Raeth’s

funeral expenses, we grant the Government’s motion, in part, and

dismiss the remainder of McCabe’s appeal.

            It is well-established that a defendant may waive the

right to appeal if that waiver is “a knowing and intelligent

decision    to    forgo    the   right   to   appeal.”      United   States   v.

Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995) (internal

quotation marks omitted).            Whether a defendant has effectively

waived his right to appeal is an issue of law we review de novo.

United States v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014),

pet. for cert. filed, ___ U.S.L.W. ___ (U.S. July 15, 2014) (No.

12-4639).        We will enforce the waiver if it is valid and the

issue appealed is within the scope thereof.                  United States v.

Blick, 408 F.3d 162, 168-70 (4th Cir. 2005).

            To     determine     whether      a   waiver    is   knowing      and

intelligent, we examine the background, experience, and conduct

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of the defendant.            Broughton-Jones, 71 F.3d at 1146.                   Generally,

if the district court fully questions a defendant regarding the

waiver of his right to appeal during a plea colloquy performed

in accordance with Fed. R. Crim. P. 11, the waiver is both valid

and enforceable.             United States v. Johnson, 410 F.3d 137, 151

(4th Cir. 2005).          The issue ultimately is evaluated by reference

to the totality of the circumstances.                      United States v. General,

278   F.3d      389,   400    (4th       Cir.   2002).         Waiver    of    appeal      of   a

sentence, however, does not bar the appeal of a sentence imposed

in    excess     of    the    statutory         maximum    or    a     challenge      to    the

validity of a guilty plea.                  Id. at 399 & n.4.                Furthermore, a

defendant does not waive the right to appeal a sentence based on

a    constitutionally         impermissible         factor      such    as    race,     United

States     v.    Marin,       961    F.2d       493,     496    (4th    Cir.     1992),         or

proceedings conducted in violation of the Sixth Amendment right

to    counsel     following        the    entry     of   the    guilty       plea.      United

States v. Attar, 38 F.3d 727, 732-33 (4th Cir. 1994).

               McCabe does not allege any defects in his plea hearing

and he does not dispute that the proceeding complied with Fed.

R. Crim. P. 11.         Rather, McCabe suggests only that the issues he

raises on appeal are not barred by his appeal waiver.                                However,

McCabe points this court to no authority for his proposition

that the district court’s alleged failure to consider his state

sentence     rendered        his    federal       sentence      unconstitutional.               We

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nonetheless find that this assignment of error implicates no

issues that would be excepted from McCabe’s appellate waiver.

Thus, McCabe may not raise this issue on appeal.

            McCabe’s challenge to his restitution order is more

problematic, however.      In this regard, it is well established

that “federal courts do not have the inherent authority to order

restitution, but must rely on a statutory source to do so.”

United   States   v.   Davis,    714   F.3d    809,   812   (4th   Cir.   2013)

(internal quotation marks and alterations omitted).                 Thus, “[a]

restitution order that exceeds the authority of the statutory

source is no less ‘illegal’ than a sentence of imprisonment that

exceeds the statutory maximum.”            Id. (internal quotation marks

omitted).     Accordingly,      “appeals   challenging      the    legality   of

restitution orders are . . . outside the scope of a defendant’s

otherwise valid appeal waiver.”               Broughton-Jones, 71 F.3d at

1147.

            Moreover, although McCabe’s failure to challenge his

restitution order in the district court requires us to review

the restitution order for plain error, see Davis, 714 F.3d 815-

16, we have found and corrected plain error after finding that

restitution was ordered to someone who was not a “victim” of the

offense of conviction.       See id. at 812-14 (finding plain error

and reversing restitution award where plea agreement did not

mandate restitution to victim and victim’s loss was not caused

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by the specific conduct that was the basis for the offense of

conviction); cf. United States v. Freeman, 741 F.3d 426, 435-39

(4th Cir. 2014) (reversing district court’s restitution order

after abuse of discretion review because “the Government utterly

failed to provide any evidence that the losses sustained by the

purported    victims       here   were      caused      by       the    specific      conduct

underlying Appellant’s offense of conviction”).

            Because McCabe’s plea agreement makes no mention of a

restitution award, and since the district court explicitly found

that the Government did not prove by a preponderance of the

evidence that McCabe’s drug conspiracy caused the apartment fire

that   resulted     in     Raeth’s    death,      it    was      plain    error      for   the

district court to order McCabe to reimburse Raeth’s estate for

half the cost of Raeth’s funeral.

            Based     on    the   foregoing,           we    deny       the    Government’s

motion to dismiss, in part, vacate that portion of the district

court’s judgment ordering McCabe to pay half of Raeth’s funeral

expenses    as    restitution,        and    we   remand          for    such    other     and

further proceedings as may be appropriate.                        We nonetheless grant

the    Government’s      motion      to   dismiss,          in    part,       deny   McCabe’s

motion to terminate or relieve counsel and for the appointment




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of new counsel, * and dismiss the remainder of McCabe’s 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.



                                                          DISMISSED IN PART,
                                                            VACATED IN PART,
                                                                AND REMANDED




      *
       Because McCabe is represented by counsel who has filed a
merits brief, as opposed to a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), he is not entitled to file a
pro se supplemental brief.     See Fed. R. App. P. 28(a), (c)
(permitting appellant to file a formal brief and a reply brief).
Moreover, to the extent McCabe is attempting to raise in his
motion ineffective assistance of counsel claims, ineffective
assistance does not conclusively appear on the record.       See
United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008)
(holding that an ineffective assistance of counsel claim is not
cognizable on direct appeal “unless it conclusively appears from
the record that defense counsel did not provide effective
representation”)   (internal   quotation  marks   and   citation
omitted).   To the contrary, since this court has decided to
vacate McCabe’s criminal judgment, in part, and remand to the
district court for further proceedings, appellate counsel has
secured at least partial relief.


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