US v. Zee Zelazurro, No. 10-4433 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4433 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ZEE ZEE ZELAZURRO, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:08-cr-01076-RBH-1) Submitted: March 31, 2011 Decided: April 4, 2011 Before NIEMEYER, SHEDD, and AGEE, Circuit Judges. Affirmed in part; dismissed in part by unpublished per curiam opinion. William F. Nettles, IV, Assistant Federal Public Defender, Florence, South Carolina, for Appellant. Arthur Bradley Parham, Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Zee Zee Zelazurro correctional officer. pled guilty to assaulting a Pursuant to a stipulation in the plea agreement under Fed. R. Crim. P. 11(c)(1)(C), the district court sentenced Zelazurro Zelazurro s counsel to forty filed a months in brief prison. pursuant to On appeal, Anders v. California, 386 U.S. 738 (1967), in which he asserts that there are no meritorious issues for appeal, but questions whether Zelazurro s presentence report properly concluded that he was a career offender. For the reasons that follow, we affirm in part and dismiss in part. We claimed are without sentencing error. jurisdiction Under 18 to address U.S.C. § Zelazurro s 3742(a)(1) and (a)(2) (2006), a defendant may appeal when the sentence was imposed in violation of law [or] was imposed as a result of an incorrect application of the sentencing guidelines. Subsections (a)(3) and (a)(4) permit an appeal of a sentence that is greater than the Guidelines range or a sentence imposed for an offense for which there is no sentencing guideline and is plainly unreasonable. 18 U.S.C. § 3742(a)(3), (a)(4) (2006). However, if, as here, a defendant has pled guilty pursuant to a plea agreement that includes a specific sentence, he may only pursue an appeal under subsections (a)(3) and (a)(4) when the sentence imposed is greater than the sentence set forth in such 2 agreement. 18 U.S.C. § 3742(c)(1) (2006). imposed a imprisonment sentence of specified forty in the months, plea The district court the exact of Because agreement. term the sentence imposed was not greater than the stipulated sentence, Zelazurro may appeal only pursuant to subsections (a)(1) and (a)(2). We conclude that the issues he seeks to raise do not fall within the parameters of § 3742(a)(1) or (a)(2). First, Zelazurro s violation of the law. sentence was not imposed in Zelazurro faced a statutory maximum term of eight years; there was no governing statutory minimum. The forty the month sentence imposed on Zelazurro is well below statutory maximum and therefore not in violation of the law. Moreover, although Zelazurro challenges the application of the Sentencing Guidelines as incorrect, where a sentence is imposed pursuant to a Rule 11(c)(1)(C) plea agreement, the sentence is contractual States v. and not based Cieslowski, Accordingly, upon 410 application of F.3d § the Guidelines. 353, 3742 364 (7th requires See United Cir. 2005). dismissal of Zelazurro s appeal of his sentence for lack of jurisdiction. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm Zelazurro s conviction and dismiss the part of the appeal relating to his sentence. This court requires that counsel inform Zelazurro, in writing, of the right 3 to petition the Supreme Court of the United States for further review. If Zelazurro requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move representation. in this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Zelazurro. 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 IN PART; DISMISSED IN PART 4
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