UNPUBLISHED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Dismissed in part, vacated in part, and remanded by unpublished 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Unpublished opinions are not binding precedent in this circuit.
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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the fact that McCabe’s state probation was revoked because of 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.