US v. Edwin Alvanez, No. 08-5264 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5264 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EDWIN F. ALVANEZ, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (8:07-cr-00326-DKC-2) Submitted: October 15, 2009 Decided: October 19, 2009 Before SHEDD, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Warren E. Gorman, Chevy Chase, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Peter M. Nothstein, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Edwin F. Alvanez appeals from his conviction on a guilty plea and sentence on charges of knowing possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5841, 5861(d), 5871 (2006) (Count One), and knowing possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922 (g)(1) (2006) (Count Nine). Alvanez filed a motion to withdraw his guilty plea, which the district court denied. The district court sentenced him to 120 months imprisonment on Count One and 60 months imprisonment on Count Nine, to run consecutively, for a total term of imprisonment of 180 months. He appeals, asserting that the district court erred in denying his motion to withdraw his guilty plea, and in calculating his sentence. further asserts ineffective assistance of counsel. We review Alvanez' claim of error He We affirm. in the district court s denial of his motion to withdraw his guilty plea for abuse of discretion. See United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). was involuntary intelligence. because Alvanez contends that his guilty plea he had limited education and In light of the district court s full compliance with Fed. R. Crim. P. 11 in accepting Alvanez guilty plea, during which Alvanez had the full advice of counsel, he has not offered credible evidence that 2 his plea was not knowing or Id. 1 otherwise involuntary. involuntary because the He also asserts that the plea was district court later enhanced his sentence four levels, 2 an enhancement which was not anticipated by the parties at the time of the plea. However, the record reflects that Alvanez was fully informed that the district court was not bound at sentencing by the guidelines calculation in the plea agreement, and he admitted to enhancement of which he now complains. the facts supporting the On these facts, we find no abuse of discretion in the court s denial of Alvanez motion to withdraw his plea. Alvanez also asserts error in the district court s application of the USSG § 2K2.1(b)(6) enhancement, claiming that it was not included in the plea agreement and, citing Apprendi v. New Jersey, 530 U.S. 466 (2000), asserting that it should have been submitted to a jury for proof beyond a reasonable doubt. plea As stated above, the district court was not bound by the agreement in rendering its sentence, a fact of which 1 Alvanez expert witness, Dr. David Williamson, who testified at sentencing that Alvanez had limited intelligence and education, did not opine that Alvanez was unable to understand the charges against him or his rights, or that Alvanez limitations rendered him incompetent to plead guilty. 2 The four-level enhancement was based on Alvanez use of the firearm during the commission of another felony, pursuant to U.S. Sentencing Guidelines Manual ( USSG ), § 2K2.1(b)(6) (2008). 3 Nor does Apprendi provide relief here, Alvanez was fully aware. because Alvanez admitted the facts on which the district court relied in applying the enhancement. Finally, claim is not Alvanez cognizable Id. at 490. ineffective on assistance direct appeal of counsel unless such ineffectiveness appears conclusively on the face of the record. United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). As our review does not demonstrate such ineffectiveness, we decline to consider Alvanez claim at this juncture. Accordingly, sentence. legal before affirm Alvanez conviction and We dispense with oral argument because the facts and contentions the we court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4
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