UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4772

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MATTHEW PAUL BOROWSKI,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Wilmington. Terrence W. Boyle, 

District Judge. (7:12-cr-00131-BO-1)

Submitted: October 29, 2014 Decided: November 5, 2014

Before MOTZ, KING, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

James B. Craven III, Durham, North Carolina, for Appellant. 

Thomas G. Walker, United States Attorney, Jennifer P. MayParker, Phillip A. Rubin, Assistant United States Attorneys, 

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Matthew Paul Borowski pled guilty, pursuant to a 

written plea agreement, to one count of receipt of child 

pornography, in violation of 18 U.S.C. § 2252(a)(2) (2012). As 

part of the agreement, Borowski waived “all rights, conferred by 

18 U.S.C. § 3742, to appeal whatever sentence is imposed,”

except a sentence in excess of the Guidelines range established 

at sentencing, and the right to appeal or collaterally attack 

his conviction or sentence except for claims of ineffective 

assistance of counsel or prosecutorial misconduct. He also 

agreed “[t]o make restitution to any victim including any victim 

with respect to a Count dismissed as part of the agreement in 

whatever amount the Court may order, pursuant to 18 U.S.C. 

§§ 3663 and 3663A.” The district court sentenced Borowski below 

the advisory Guidelines range to 174 months imprisonment and 

ordered him to make restitution in the sum of $8000 to “Cindy,” 

a victim whose image was found within his pornography 

collection. 

Borowski appeals, challenging the restitution order in 

light of the Supreme Court’s recent decision in Paroline v. 

United States, 134 S. Ct. 1710 (2014). The Government contends 

that the appeal waiver forecloses Borowski’s appeal of the 

restitution order. For the reasons that follow, we dismiss the 

appeal.
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Where the Government seeks to enforce an appeal waiver 

and did not breach its obligations under the plea agreement, we 

will enforce the waiver if the defendant’s waiver was knowing 

and intelligent and the issues raised on appeal fall within the 

scope of the agreement. United States v. Copeland, 707 F.3d 

522, 528 (4th Cir.), cert. denied, 134 S. Ct. 126 (2013). We

review the validity of an appellate waiver de novo. United 

States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010). To 

determine whether an appeal waiver is knowingly and 

intelligently entered, we examine the totality of the 

circumstances, including the defendant’s experience, conduct, 

educational background, and familiarity with the agreement’s 

terms. United States v. General, 278 F.3d 389, 400 (4th Cir. 

2002).

In this case, Borowski concedes that he agreed to an 

appeal waiver. He does not assert that the appellate waiver was 

not knowing or intelligent, or that his agreement to the waiver 

was in any way involuntary. Borowski expressly agreed to waive 

the right to appeal his sentence. “An order to pay restitution 

is a part of a criminal sentence.” United States v. Grant, 715 

F.3d 552, 554 (4th Cir. 2013). The terms of Borowski’s waiver 

were “clear and unmistakable.” United States v. Blick, 408 F.3d 

162, 169 (4th Cir. 2005). We conclude that the waiver is valid. 
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Borowski does not challenge the adequacy of the 

court’s advice regarding his appellate waiver, assert that he 

did not understand the waiver’s terms, or contend that the 

restitution order does not fall within the scope of the appeal 

waiver. Rather, he contends that he should not be bound by the 

appeal waiver in his plea agreement because, if he had realized 

at the time he entered the plea that the Supreme Court would 

hear Paroline, he would have insisted that restitution be 

excluded from the appeal waiver. This argument is unavailing.

“The law ordinarily considers a waiver knowing, 

intelligent, and sufficiently aware if the defendant fully 

understands the nature of the right and how it would likely 

apply in general in the circumstances — even though the 

defendant may not know the specific detailed consequences of 

invoking it.” United States v. Thornsbury, 670 F.3d 532, 537 

(4th Cir. 2012) (internal quotation marks and alteration 

omitted). Additionally, “a party cannot ask to re-bargain the 

waiver of his right to appeal because of changes in the law,” 

and such changes do not render an otherwise valid plea agreement 

unenforceable. Copeland, 707 F.3d at 529 (internal quotation 

marks and alteration omitted) (rejecting argument that 

subsequent authority in United States v. Simmons, 649 F.3d 237 

(4th Cir. 2011) (en banc), rendered appellate waiver 

unenforceable); see Blick, 408 F.3d at 169-73 (rejecting 
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argument that challenge to sentence under intervening authority 

in United States v. Booker, 543 U.S. 220 (2005), was outside 

scope of appellate waiver). We conclude that the mere fact 

that, at the time of his guilty plea, Borowski failed to 

anticipate a Supreme Court decision addressing the calculation 

of restitution for victims of child pornography does not render 

his waiver unknowing or involuntary or otherwise relieve him of 

his appeal waiver. 

We have reviewed the record and considered Borowski’s 

arguments against enforcement of the waiver, and conclude that 

the appellate waiver was knowing, voluntary and therefore, 

enforceable. Because restitution is part of the sentence and 

Borowski waived his right to appeal his sentence except on 

grounds not presented here, we also conclude that the issue he 

seeks to raise on appeal is within the scope of the appeal 

waiver. 

Accordingly, we dismiss Borowski’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