UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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. 
4

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 
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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