US v. Luis Becerra, No. 10-4812 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4812 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LUIS ALBERTO BECERRA, Billeda Becerra, a/k/a Garcia Munoz, a/k/a Flaco, Luis Avilleda a/k/a Luis Alberto Becerra, a/k/a Luis Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever, III, District Judge. (7:09-cr-00079-D-1) Submitted: April 29, 2011 Before MOTZ and Circuit Judge. SHEDD, Decided: Circuit Judges, and June 2, 2011 HAMILTON, Senior Dismissed in part and affirmed in part by unpublished per curiam opinion. Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North Carolina, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Luis Alberto Becerra pled guilty, pursuant to a written plea agreement, to conspiracy to possess with intent to distribute 500 grams or more of cocaine powder, and fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a), 846 (2006). Becerra was sentenced to 120 months in prison. On appeal, Becerra s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that, in appeal, his but opinion, there questioning knowing and voluntary. are no whether meritorious Becerra s issues for plea was guilty Counsel argues that Becerra s guilty plea to the count of the indictment charging him with conspiracy to possess with intent to distribute cocaine base was invalid. Counsel concedes, however, that Becerra s plea to the portion of the same count concerning cocaine powder was valid. appears to bifurcate the two substances charged Counsel in the same count into two separate and distinct charges, and claims that Becerra s plea was valid Accordingly, counsel subject a mandatory for pleading to imprisonment as argues to one that not Becerra minimum guilty but to of to should only conspiring the have sixty to other. been months distribute cocaine powder pursuant to 21 U.S.C § 841(b)(1)(B), rather than the 120-month mandatory minimum sentence imposed pursuant to 21 U.S.C. § 841(b)(1)(A). 2 The Government filed a motion to dismiss the appeal based on the appellate waiver in the plea agreement, arguing that Becerra knowingly and voluntarily waived his right to appeal his sentence, and the issue he seeks to raise on appeal falls within responded, the scope acknowledging of that the waiver. Becerra s Becerra s waiver is counsel valid, but arguing that, because this is an Anders appeal, this appeal is outside the scope of the waiver. Becerra was informed of his right to file a pro se supplemental brief, but has not done so. We review de novo the question of whether a defendant has waived his 2010) of appeal in connection with a plea United States v. Manigan, 592 F.3d 621, 626 (4th proceeding. Cir. right (internal quotation marks omitted). Where the government seeks to enforce an appeal waiver and the appellant does not contend that the government is in breach of the plea agreement, a waiver will be enforced if the record shows the waiver is valid and the challenged issue falls within the scope of the waiver. Cir. 2005). United States v. Blick, 408 F.3d 162, 168 (4th An appeal waiver is valid if it is the result of a knowing and intelligent decision to forgo the right to appeal. United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995) (internal quotation marks omitted). Our review of the record leads us to conclude that Becerra validly waived the right to appeal his sentence, and has 3 thus waived review of the sentencing issue he raises and any sentencing error that may be revealed pursuant to our Anders review. Thus, we grant the Government s motion to dismiss the appeal in part as it pertains to Becerra s sentence. The waiver provision does Becerra s appeal of his conviction. motion to dismiss as it pertains not, however, preclude Accordingly, we deny the to Becerra s conviction. Because Becerra did not move in the district court to withdraw his guilty plea, the Rule 11 hearing is reviewed for plain error. United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). To establish plain error, [Becerra] must show that an error occurred, that the error was plain, and the error affected his substantial rights. United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). Even if Becerra makes this three-part showing, this Court may exercise its discretion to correct the error only if it seriously affects the fairness, integrity or public reputation of judicial proceedings. Lynn, 592 F.3d 572, 577 (4th Cir. 2010) United States v. (internal quotation marks omitted). Prior to accepting a guilty plea, the district court, through colloquy with the defendant in open court, must inform the defendant of, and determine that the defendant understands the nature of the charges to which the plea is offered, any mandatory minimum penalty, the 4 maximum possible penalty he faces, and the various rights he is relinquishing by pleading guilty. Fed. R. Crim. P. 11(b). that the plea is voluntary. addition, court plea. [b]efore must entering determine that The court must also ascertain Fed. R. Crim. P. 11(b)(2). judgment there is Fed. R. Crim. P. 11(b)(3). on a a guilty factual plea, basis for In the the Our review of the record leads us to conclude that the district court complied with the Rule 11 requirements, and Becerra s guilty plea was knowing and voluntary and supported by an adequate factual basis. In accordance with Anders, we have reviewed the entire record and have found no unwaived and potentially meritorious issues for review. Accordingly, while we grant the Government s motion to dismiss in part, we affirm Becerra s conviction. This court requires that counsel inform Becerra in writing of his right to petition the Supreme Court of the United States for further review. If Becerra 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 Becerra. We dispense with oral argument because the facts and legal contentions are adequately 5 presented in the materials before the court and argument would not aid the decisional process. DISMISSED IN PART; AFFIRMED IN PART 6
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