UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4434

ERIC LEE WAGNER,

Defendant-Appellant. 

Appeal from the United States District Court

for the Northern District of West Virginia, at Clarksburg.

Irene M. Keeley, District Judge.

(CR-99-37)

Submitted: November 30, 2000

Decided: December 8, 2000

Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.

Dismissed by unpublished per curiam opinion. 

COUNSEL

James R. Fox, JORY & SMITH, L.C., Elkins, West Virginia, for

Appellant. Melvin W. Kahle, Jr., United States Attorney, Sherry L.

Muncy, Assistant United States Attorney, Elkins, West Virginia, for

Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Eric Lee Wagner appeals his sentence imposed after he pled guilty

to being a felon in possession of a firearm, in violation of 18 U.S.C.A.

§ 922(g)(1) (West Supp. 2000). Wagner alleges for the first time on

appeal that the delay between the commission of the crime and the filing of the indictment constituted undue delay in violation of his due

process rights. He also alleges that his sentence should be "reversed"

due to prosecutorial vindictiveness. We dismiss the appeal. 

On April 26, 1996, Wagner was released from federal prison and

placed on supervised release relating to a conviction for conspiring to

receive stolen explosives. Wagner was found to possess a firearm, in

violation of his supervised release terms, and revocation proceedings

were instituted on September 12, 1997, based upon unrefuted evidence that Wagner possessed the firearm. Wagner was re-incarcerated

for twenty months between April 1, 1998, and November 17, 1999.

The indictment charging Wagner with being a felon in possession of

a firearm was filed on September 16, 1999. Wagner pled guilty to a

violation of 18 U.S.C.A. § 922(g) in a formal plea agreement. He did

not raise the issue of pre-indictment delay at any time in the district

court. Wagner was sentenced under the career offender portion of the

Sentencing Guidelines and received a 210-month term of imprisonment. 

Wagner asserts that the delay in filing the indictment resulted in

prejudice to him because, if filed earlier, he may have been eligible

for some provisions that may have reduced his sentence.* He also

asserts that the delay was based purely upon the vindictiveness of the

prosecutor. However, Wagner pled guilty to the indictment, and he

has, thus, waived any non-jurisdictional challenge to the indictment.

Tollett v. Henderson, 411 U.S. 258, 267 (1973); Unites States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993). In order to sustain a challenge

to the jurisdiction of the indictment, Wagner must establish that the

indictment does not, by any reasonable construction, charge the

*The indictment was filed within the statute of limitations. 

2 UNITED STATES v. WAGNER
offense for which he was convicted. Hayle v. United States, 815 F.2d

879, 881-82 (2d Cir. 1987); see also United States v. Broce, 488 U.S.

563, 569 (1989) (guilty plea forecloses attack on indictment unless,

"on the face of the record," the court had no power to enter the conviction). 

Wagner’s claims do not challenge the indictment’s jurisdiction.

Nevertheless, a defendant may preserve specified issues for review by

making a conditional plea pursuant to Fed. R. Crim. P. 11(a)(2).

Under this rule, Wagner was required to execute a specific, written

reservation of his right to challenge the indictment. However, both the

record and his argument are devoid of any mention of such a conditional plea. By pleading guilty as he did, Wagner relinquished his

right to contest delay in bringing the indictment. 

We therefore dismiss the appeal. 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. 

DISMISSED

UNITED STATES v. WAGNER 3