US v. Manuel Reyes-Flores, No. 13-4326 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4326 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MANUEL RICARDO REYES-FLORES, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Dever, III, Chief District Judge. (4:12-cr-00132-D-1) Submitted: November 19, 2013 Before WYNN and Circuit Judge. FLOYD, Circuit Decided: November 21, 2013 Judges, and HAMILTON, Senior Affirmed by unpublished per curiam opinion. Jenna Turner Blue, BLUE STEPHENS & FELLERS LLP, Raleigh, 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 Unpublished opinions are not binding precedent in this circuit.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: Manuel Ricardo Reyes-Flores pled guilty to conspiracy to distribute and possess with intent to distribute 500 grams or more of methamphetamine, 21 U.S.C. ยง 846 (2012). 150-month sentence. He received a On appeal, counsel for Reyes-Flores has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), certifying that there are no meritorious issues for appeal, but questioning whether the district court complied with the mandates of Fed. R. Crim. P. 11 in accepting Reyes-Flores guilty plea and whether Reyes-Flores executed a valid waiver of his appellate rights. Although Reyes-Flores was notified of his right to file a pro se supplemental brief, he has not done so. We affirm. Although appellate waiver counsel is raises valid, the the issue Government of has whether not filed response in this court invoking the appellate waiver. despite the existence conduct the required of an Anders appeal review. waiver, See this United the court a Thus, will States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (noting that if the Government does nothing in response to an Anders brief in a case where the appellant has waived his right to appeal, the court will perform the required Anders review); see also United States v. Metzger, 3 F.3d 756, 757 58 (4th Cir. 1993) (holding that the Government s failure to assert an appeal waiver as a 2 bar to the appeal constitutes a waiver of reliance on the appeal waiver). Counsel also questions the adequacy of the Rule 11 hearing. Because Reyes-Flores did not move in the district court to withdraw his guilty plea, any error in the Rule 11 hearing is reviewed for plain error. United States v. Martinez, 277 F.3d 517, 525 26 (4th Cir. 2002). To establish plain error, he must show: (1) an error was made; (2) the error is plain; and (3) the error affects substantial rights. United States v. Massenburg, 2009) 564 F.3d 337, 342 43 unpreserved Rule 11 error). lies within [this (4th Cir. (reviewing The decision to correct the error court s] discretion, and [the court] exercise[s] that discretion only if the error seriously affects the fairness, proceedings. integrity or public has not presented argument to demonstrate plain error. the district requirements of judicial Id. at 343 (internal quotation marks omitted). Reyes-Flores that reputation during court the fully plea any evidence or Indeed, the record reveals complied colloquy, with ensuring Rule that 11 s Reyes- Flores plea was knowing and voluntary, that he understood the rights he was giving up by pleading guilty and the sentence he faced, and pleading that guilty. he committed We the conclude offense that to which Reyes-Flores he was plea was knowing, voluntary, and supported by a sufficient factual basis. 3 In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the district court s judgment. This court requires that counsel inform Reyes-Flores, in writing, of the right to petition the Supreme Court of the United States for further review. filed, but If Reyes-Flores requests that a petition be 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 Reyes-Flores. oral argument adequately because presented in the the facts and materials We dispense with legal contentions are before this and court argument would not aid the decisional process. AFFIRMED 4