US v. Albert Espinoza, No. 10-4908 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4908 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ALBERT ESPINOZA, a/k/a Bert, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Bryson City. Martin K. Reidinger, District Judge. (2:09-cr-00029-MR-1) Submitted: October 4, 2011 Before TRAXLER, Judges. Chief Judge, Decided: and GREGORY December 12, 2011 and WYNN, Circuit Dismissed by unpublished per curiam opinion. L. Aron Pena, Edinburg, Texas, for Appellant. Anne M. Tompkins, United States Attorney, Richard Lee Edwards, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Albert Espinoza pled guilty to conspiracy to possess with intent to distribute at least 1000 kilograms of marijuana, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A) (2006). plea agreement, truthful contest Espinoza testimony his and conviction agreed to information and cooperate and by sentence, waived In the providing all to for except rights claims of ineffective assistance of counsel or prosecutorial misconduct. The plea agreement further provided that the Government had the sole discretion to determine substantial assistance pursuant U.S. to (2009). appeal or warranting Sentencing Espinoza also collaterally whether a motion Guidelines waived Espinoza for departure (USSG) Manual all objections the attack a provided and Government s § 5K1.1 rights to determination that he failed to provide substantial information or knowingly provided false information. Prior to sentencing, the Government filed a motion for a downward departure Espinoza s substantial Espinoza s testimony pursuant determination that USSG assistance. at he to made However, sentencing false § 5K1.1 and based statements based on following on therein, its the Government withdrew the motion and sought a two-level increase for obstruction of justice under USSG § 3C1.1. The plea agreement stated that, regardless of any substantial assistance, 2 the United States will not move for a reduction in sentence and may seek an increased sentence if the defendant furnishes materially false information. knowingly The sentencing court denied the increase for obstruction of justice, did not consider the withdrawn USSG § 5K1.1 motion, and sentenced Espinoza within the advisory Guidelines sentencing range to 210 months of the Government imprisonment. On breached motion appeal, the plea and sentencing. that Espinoza agreement counsel argues by that withdrawing provided its ineffective USSG § 5K1.1 assistance at In addition, he asserts four claims of sentencing error by the district court. In response, the Government argues that Espinoza validly waived the right to appeal his conviction and sentence, that it did not breach the plea agreement, and that Espinoza s claim of ineffective assistance of counsel, although excepted from the appellate waiver, is not supported by the record and therefore is not cognizable on direct appeal. We dismiss. Espinoza does not challenge the validity of his plea or the waiver of his right to appeal. Instead, Espinoza contends that the appeal waiver is unenforceable because the Government breached the plea agreement containing the waiver by withdrawing its USSG § 5K1.1 motion 3 and seeking sentencing United States v. Cohen, 459 F.3d 490, 495 (4th enhancements. Cir. 2006). Our review of the record and the plain language of the plea agreement lead us to conclude that the Government acted within its discretion and did not breach the plea agreement. Wade v. United States, 504 U.S. 181, 184-87 (1992) (in absence of cooperation agreement, Government s decision regarding § 5K1.1 motion is reviewed to determine whether it was based on an unconstitutional motive); United States v. Hartwell, 448 F.3d 707, 718 (4th Cir. 2006). Because there was no breach, the waiver of appeal is valid and enforceable as to all substantive sentencing issues asserted by Espinoza. Accordingly, we dismiss that portion of Espinoza s appeal. Moreover, ineffective we assistance find of no counsel conclusive and therefore evidence decline of to address Espinoza s claim of ineffective assistance of counsel at this time. 435 (4th See, e.g., United States v. Benton, 523 F.3d 424, Cir. 2008) ( Ineffective assistance claims are generally not cognizable on direct appeal, however, unless it conclusively appears from the record that defense counsel did not provide effective representation. (internal quotation marks and citation omitted)); United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999) ( A claim of ineffective assistance of counsel should be raised by a habeas corpus motion under 28 4 U.S.C. § 2255 in the district court and not on direct appeal, unless it counsel conclusively did not appears provide from effective the record that representation. defense (internal quotation marks and citation omitted)). 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. DISMISSED 5
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