UNITED STATES of America, Plaintiff-Appellee, v. Henry V. BRICE, Defendant-Appellant.
No. 07-5301.
United States Court of Appeals, Sixth Circuit.
April 20, 2010.
561
JORDAN, District Judge.
Henry V. Brice appeals his convictions and sentence of 194 months in prison for aiding and abetting a bank robbery and carrying a firearm in relation to a crime of violence. Counsel for the defendant filed an appellate brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) suggesting that there were no meritorious grounds for appeal, but nevertheless raising two possible issues: whether Brice had proper legal representation as to his driving under suspension convictions and whether his criminal history category would be lower if his misdemeanors were scored pursuant to amended guidelines. We conclude that Brice waived his appellate rights in his plea agreement, and his pro se subject matter jurisdiction argument has no merit. Therefore, we AFFIRM.
Brice pleaded guilty to both charges. In his plea agreement, Brice stipulated that
Brice‘s appellate waiver is valid and bars consideration of the claims raised in the Anders brief. A waiver provision in a plea agreement is binding so long as it is made knowingly and voluntarily. See, e.g., United States v. Ashe, 47 F.3d 770, 775-76 (6th Cir.1995). A valid waiver precludes a defendant from bringing any type of claim not excluded by the agreement. See Davila v. United States, 258 F.3d 448, 451 (6th Cir.2001) (discussing waiver of a collateral appeal).
Brice‘s plea agreement provides in relevant part:
Defendant further understands he is waiving all appellate rights that might have been available if he exercised his right to go to trial. It is further agreed that (i) defendant will not file a direct appeal, nor litigate under
Title 28 United States Code, Section 2255 and/orSection 2241 , any sentence within or below the Anticipated Guidelines Range.... Such waiver does not apply, however, to a claim of involuntariness, prosecutorial misconduct, or ineffective assistance of counsel.
At the plea hearing, Brice stated that he was pleading guilty voluntarily and that he understood that he was waiving his right to appeal his conviction and a sentence within the anticipated guidelines range. A defendant who expressly represents in open court that his guilty plea is voluntary ordinarily may not repudiate his statements thereafter. See United States v. Todaro, 982 F.2d 1025, 1030 (6th Cir.1993) (relying on Fontaine v. United States, 411 U.S. 213, 215, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973)). Because the appellate waiver was valid and Brice‘s sentence was within the anticipated guidelines range, this court need not consider the claims raised by counsel in the Anders brief.
The appellate waiver, however, does not bar Brice‘s pro se argument challenging the district court‘s subject matter jurisdiction over his bank robbery conviction. “[S]ubject matter jurisdiction may be raised at any time,” and is non-waivable. Lott v. Coyle, 261 F.3d 594, 609 (6th Cir.2001); see also United States v. Titterington, 374 F.3d 453, 459 (6th Cir.2004).
Although Brice‘s argument has not been waived, it is nonetheless without merit. Brice argues that the FDIC does not insure banks against robberies, an argument which essentially challenges the constitutionality of the bank robbery statute,
Accordingly, the district court‘s judgment is AFFIRMED, and the motion of attorney T. Clifton Harviel to withdraw as counsel for the defendant is granted.