US v. Jose Paz-Lopez, No. 09-5181 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5181 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSE FIDEL DE PAZ-LOPEZ, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:09-cr-00014-CCB-2) Submitted: January 26, 2011 Decided: February 24, 2011 Before MOTZ, KEENAN, and WYNN, Circuit Judges. Affirmed in part; dismissed in part by unpublished per curiam opinion. A. D. Martin, LAW OFFICE OF ANTHONY D. MARTIN, Greenbelt, Maryland, for Appellant. Judson T. Mihok, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jose Fidel de Paz-Lopez appeals his convictions and 114-month sentence imposed following his guilty plea, pursuant to a written plea agreement, to one count of conspiracy to interfere with commerce by robbery, in violation of 18 U.S.C. § 1951 (2006); and use of a firearm in furtherance of a crime of violence and aiding §§ 924, 2 (2006). thirty months eighty-four and abetting, in violation of 18 U.S.C. The district court sentenced Paz-Lopez to imprisonment consecutive on the months robbery conspiracy, imprisonment on the plus firearms count. Counsel filed California, 386 meritorious grounds acted in consider bad a U.S. 738 for faith by downward a brief (1967), appeal, stating but failing to departure to dismiss the appeal on to that alleging debrief pursuant Guidelines Manual § 5K1.1 (2006). motion pursuant Anders there v. are no the Government Paz-Lopez and to U.S. to Sentencing The Government has filed a the basis that Paz-Lopez explicitly waived his right to appeal his sentence in the plea agreement. Paz-Lopez opposes the motion, contending that he did not knowingly agree to the waiver, and that even if the waiver is valid, the Government s bad faith refusal to provide him an opportunity to cooperate is a claim beyond the scope of the waiver. Paz-Lopez filed a pro 2 se supplemental brief also challenging the Government s failure to debrief him and move for a downward departure based on substantial assistance. Paz-Lopez also contends counsel rendered ineffective assistance by failing to explain the consequences of his plea. We review the validity of a waiver de novo. States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). United A waiver is valid if the defendant s agreement to the waiver was knowing and voluntary. United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992); United States v. Wessells, 936 F.2d 165, 167 (4th Cir. 1991). To intelligent, determine we examine whether the a waiver totality of is the knowing and circumstances, including the experience and conduct of the accused, as well as the accused s educational background and familiarity with the terms of the plea agreement. United States v. General, 278 F.3d (internal 389, citation 400 (4th omitted). Cir. 2002) Generally, if a quotation district marks court and fully questions a defendant regarding the waiver of appellate rights during the Fed. R. Crim. P. 11 colloquy, the waiver is valid and enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). At the plea hearing, the district court fully complied with Fed. R. Crim. P. 11, and specifically ensured that PazLopez understood and agreed to the appellate waiver provision. Accordingly, we find that Paz-Lopez knowingly and voluntarily 3 entered his guilty plea and that his appellate waiver was also knowing and voluntary. We will enforce a valid waiver so long as the issue being appealed is within the scope of the waiver. Blick, 408 F.3d at 168. Paz-Lopez explicitly waived his right to appeal any within sentence or below the advisory guidelines range resulting from an adjusted offense level of 19, with a seven year consecutive sentence. . . . his within-guidelines sentence Thus, Paz-Lopez s appeal of resulting from his adjusted offense level of nineteen falls within the scope of that waiver. Accordingly, we grant in part the Government s motion to dismiss the appeal. The appellate waiver does not, however, foreclose a claim of ineffective assistance of trial counsel. F.3d at 151. Johnson, 410 Nor does it preclude our Anders review of the integrity of the Rule 11 proceeding. Therefore, we deny in part the Government s motion to dismiss the appeal. A defendant may raise a claim of ineffective assistance of counsel on direct appeal if and only if it conclusively appears from the record that his counsel did not provide effective assistance. States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998). that the counsel s record does assistance reasonableness. not fell conclusively below an establish objective United We find that trial standard of Accordingly, we decline to consider this claim 4 on direct appeal. the Government faith in perhaps Finally, to the extent Paz-Lopez claims that breached declining earn a the the plea agreement opportunity reduction in his for and him sentence, acted we bad cooperate to in and conclude claims are squarely contradicted by the record. these Wade v. United States, 504 U.S. 181, 184-87 (1992). In accordance with Anders, we have reviewed the entire record in the case and have found no meritorious issues for appeal outside the scope of the appellate waiver. We therefore affirm Paz-Lopez s convictions and dismiss the appeal of his sentence. writing, This court requires that counsel inform Paz-Lopez, in of the right to petition United States for further review. the Supreme Court of the If Paz-Lopez requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Paz-Lopez. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED IN PART; DISMISSED IN PART 5
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