UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4741

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

VAN SON THAI, a/k/a Son Tau, a/k/a Thai Son,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Anthony John Trenga, 

District Judge. (1:09-cr-00408-AJT-2)

Submitted: March 24, 2011 Decided: March 31, 2011

Before NIEMEYER, GREGORY, and KEENAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Rebecca S. Colaw, REBECCA S. COLAW, PC, Suffolk, Virginia, for 

Appellant. Kimberly Riley Pederson, Assistant United States 

Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Van Son Thai pled guilty, pursuant to a written plea 

agreement, to one count of conspiracy to affect commerce by 

robbery, in violation of 18 U.S.C. § 1951 (2006), and one count 

of use of firearms during a crime of violence, in violation of 

18 U.S.C. § 924(c) (2006). The district court sentenced Thai to 

120 months’ imprisonment, which consisted of thirty-six months 

on the conspiracy count and eighty-four months on the firearms 

count, running consecutively. Thai timely appealed. On appeal, 

Thai first argues that count one of the superseding indictment 

failed to allege sufficient facts to establish federal 

jurisdiction and accordingly should have been dismissed. Thai 

also argues that the district court erred at sentencing because 

it considered two additional robberies not identified in the 

statement of facts and because the court failed to find that 

Thai had committed the two additional robberies beyond a 

reasonable doubt. In response, the Government filed a motion to 

dismiss, relying on Thai’s appeal waiver. We agree with the 

Government’s position and dismiss Thai’s appeal.

It is well-settled that “a defendant may waive in a 

valid plea agreement the right of appeal under 18 U.S.C. 

§ 3742.” United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 

1990). “Whether a defendant has effectively waived the right to 

appeal is an issue of law that [this court] review[s] de novo.” 
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United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). In 

undertaking that review, this court will enforce an appellate 

waiver where such a waiver “is knowing and intelligent and the 

issue sought to be appealed falls within the scope of the appeal 

waiver.” United States v. Poindexter, 492 F.3d 263, 270 (4th 

Cir. 2007). An appellate waiver is generally considered to be 

knowing and intelligent where the court specifically questioned 

the defendant regarding the waiver during the Rule 11 colloquy 

and the record indicates that the defendant understood the 

significance of the waiver. United States v. Johnson, 410 F.3d 

137, 151 (4th Cir. 2005). Our review of the record leads us to 

conclude that Thai knowingly and voluntarily waived the right to 

appeal his conviction and sentence.

Only a “narrow class of claims involves errors that 

the defendant could not have reasonably contemplated when the 

plea agreement was executed,” and therefore are excluded from 

the scope of the waiver. Poindexter, 492 F.3d at 270 (internal 

quotation marks omitted). For example, claims that proceedings 

following the guilty plea were conducted in violation of the 

defendant’s Sixth Amendment right to counsel, United States v. 

Attar, 38 F.3d 727, 732-33 (4th Cir. 1994), or that a sentence 

was imposed in excess of the statutory maximum penalty “or based 

on a constitutionally impermissible factor such as race,” United 
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States v. Marin

Thai first argues that count one of the superseding 

indictment failed to allege sufficient facts to establish 

federal jurisdiction, and thus, the district court lacked 

subject matter jurisdiction. Because subject matter 

jurisdiction involves the power of a court to hear a case, 

claims that a court lacked jurisdiction are not barred by an 

appellate waiver. 

, 961 F.2d 493, 496 (4th Cir. 1992), fall within 

the narrow category of claims excluded from an appellate waiver.

See United States v. Cotton, 535 U.S. 625, 

630 (2002) (subject matter jurisdiction cannot be forfeited or 

waived). However, the Supreme Court also established in Cotton

that a defective indictment does not deprive a court of 

jurisdiction. Id. at 631. Thus, Thai’s claim is not 

jurisdictional, but “goes only to the merits of the case,” and 

is therefore barred by his appeal waiver. Id. (quoting Lamar v. 

United States

Thai’s second claim, that the district court erred in 

imposing his sentence, does not rise to the level of a 

“reasonably unforeseeable” constitutional violation, but rather 

constitutes a routine challenge to the procedural reasonableness 

of his sentence. Therefore, this claim falls squarely within 

the scope of the appellate waiver. Accordingly we grant the

Government’s motion to dismiss. We dispense with oral argument 

because the facts and legal contentions are adequately presented 

, 240 U.S. 60, 65 (1916)). 
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in the materials before the court and argument would not aid the 

decisional process.

DISMISSED