                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4135


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DENNIS R. MIRACLE,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.      James P. Jones,
District Judge. (2:10-cr-00010-jpj-pms-1)


Submitted:   October 11, 2011             Decided:   January 19, 2012


Before KING, SHEDD, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Dana R. Cormier, DANA R. CORMIER, PLC, Staunton, Virginia, for
Appellant.   Timothy J. Heaphy, United States Attorney, Steven
Randall Ramseyer, Assistant United States Attorney, Abingdon,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Dennis    R.     Miracle        appeals     his     conviction      for

possession of a firearm by a convicted felon in violation of 18

U.S.C.      § 922(g)(1)     (2006),    driving       under     the   influence     in

violation of 36 C.F.R. § 4.23(a), and driving with a suspended

license in violation of 36 C.F.R. § 4.2.                 Miracle pleaded guilty

pursuant to a plea agreement and was sentenced to a cumulative

term of imprisonment of ninety-six months.

             The Government moved to dismiss Miracle’s appeal on

the basis of the appellate waiver in his plea agreement.                      Where

the Government seeks to enforce an appeal waiver and there is no

claim that it breached its obligations under the plea agreement,

we   will    enforce   the    waiver    if    the    record     establishes      that

(1) the defendant knowingly and intelligently agreed to waive

the right to appeal; and (2) the issue being appealed is within

the scope of the waiver.         United States v. Blick, 408 F.3d 162,

168 (4th Cir. 2005).          We find that Miracle’s appellate waiver

extended only to an appeal of his sentence; thus, the issues he

raises on appeal are not barred by the waiver.                   The scope of the

provision is not clear from its text and, more importantly, at

Miracle’s plea hearing, the Government and the district court

represented it as a waiver only of Miracle’s right to appeal his

sentence.        Therefore,     we    deny     the     Government’s     motion    to

dismiss.

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              Miracle challenges his guilty plea with a claim that

the Government did not support his plea agreement with adequate

consideration.         The Government agreed to dismiss two pending

charges in exchange for Miracle’s guilty plea.                        Miracle argues

that the possible punishment for the dismissed charges was not

proportional to the punishment imposed for the charges to which

he pleaded guilty.          We do not concern ourselves with such review

of   proportionality        of   punishments.          Miracle     agreed   to     plead

guilty   to    three   charges       in    return     for    the   dismissal     of   two

additional charges.          Both parties kept their promises.                 We will

not disturb the bargain because Miracle, in hindsight, views it

as   lopsided.         We    find    that        Miracle’s    plea    agreement       was

supported by adequate consideration.

              Miracle’s      other        appellate     argument      is    that      his

conviction was not supported by a factual basis because he did

not admit his conduct.              “Before entering judgment on a guilty

plea, the court must determine that there is a factual basis for

the plea.”      Fed. R. Crim. P. 11(b)(3).              Miracle did not move the

district court to withdraw his guilty plea; thus, this court

reviews the Rule 11 hearing for plain error.                       United States v.

Martinez, 277 F.3d 517, 525-26 (4th Cir. 2002).                        “To establish

plain error, [Miracle] must show that an error occurred, that

the error was plain, and that the error affected his substantial

rights.”      United States v. Muhammad, 478 F.3d 247, 249 (4th Cir.

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2007).         Even    if     Miracle       satisfies       these    requirements,

“correction of the error remains within our discretion, which we

should not exercise . . . unless the error seriously affect[s]

the   fairness,       integrity,     or     public   reputation       of       judicial

proceedings.”     Id.       (internal quotation marks omitted).                To find

a factual basis, a court “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.”

United States v. Mitchell, 104 F.3d 649, 652 (4th Cir. 1997).                        A

court “may conclude that a factual basis exists from anything

that appears on the record.”              United States v. DeFusco, 949 F.2d

114, 120 (4th Cir. 1991).

           Miracle testified that he had no memory of the day in

question, but pleaded guilty because he was aware that others

would testify to his actions.                  He did not contest his guilt.

The district court received ample evidence to support Miracle’s

guilty plea.      Moreover, Miracle stipulated in his plea agreement

that a factual basis existed to support his plea.                              On this

record,   we   find    that    the   evidence      before    the    district     court

clearly established a factual basis for Miracle’s plea.                          While

it is true that the court did not proclaim that it found that

the plea was supported by a factual basis, we conclude that this

technical omission does not amount to plain error because it did

not   affect    Miracle’s     substantial        rights.      Because      a   factual

                                           4
basis was actually adduced on the record, we decline to disturb

Miracle’s   plea   on   account   of   a   clerical    shortcoming    by   the

district court.

            We therefore deny the Government’s motion to dismiss

and affirm the district court’s judgment.             We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                                     AFFIRMED




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