US v. Tony Peguero, No. 08-5268 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5268 UNITED STATES OF AMERICA, Plaintiff Appellee, v. TONY ARISMENDY PEGUERO, Defendant Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:07-cr-00017-RLV-DCK-1) Submitted: July 20, 2009 Decided: August 3, 2009 Before MOTZ, KING, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Denzil H. Edward R. Carolina, Asheville, Forrester, Charlotte, North Carolina, for Appellant. Ryan, Acting United States Attorney, Charlotte, North Amy E. Ray, Assistant United States Attorney, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Tony Arismendy Peguero pled guilty pursuant to a plea agreement to possession kilograms of cocaine violation of 21 with and U.S.C. 18 U.S.C. § 2 (2006). the aiding intent and § 841(a)(1), to distribute abetting the (b)(1)(A) five same, (2006) in and After finding Peguero eligible for the safety valve, 18 U.S.C. § 3553(f) (2006), the district court sentenced him to 108 months imprisonment. On appeal, Peguero claims that his guilty plea was unknowing and involuntary. Government urges dismissal of the appeal on the ground The that Peguero validly waived his right to appeal his conviction in his plea agreement. A We affirm. defendant may waive the right to appeal if that waiver is knowing and intelligent. See United States v. Blick, 408 F.3d 162, 169 (4th Cir. 2005). Generally, if the district court fully questions a defendant regarding the waiver of his right to appeal during the Fed. R. Crim. P. 11 colloquy, the waiver is both valid and enforceable. See United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). Whether a defendant validly waived his right to appeal is a question of law that we review de novo. See Blick, 408 F.3d at 168. Our review of the record reveals that Peguero knowingly and voluntarily waived his right to appeal his conviction and sentence. 2 We his guilty erred in conclude, plea was accepting appellate that involuntary his waiver constitutional however, plea and assertion that that district court constitutes because claim. Peguero s it See, the an exception presents a United States e.g., to the colorable v. Attar, 38 F.3d 727, 733 n.2 (4th Cir. 1994). Accordingly, we decline the dismiss Government s suggestion to the appeal. Nevertheless, although we possess jurisdiction to consider this claim, we find it to be without merit. the magistrate ensuring judge that conducted Peguero s voluntarily made. a guilty The record confirms that thorough plea Rule was 11 hearing, knowingly and Peguero s belated claim that he was confused at the hearing and did not understand the consequences of his plea is simply belied by the record. Accordingly, we 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 3
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