United States v. Miguel Perez Hernandez , 170 F. App'x 606 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-15919 November 2, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00042-CR-HLM-4-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL PEREZ HERNANDEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 2, 2005)
Before TJOFLAT, DUBINA and RONEY, Circuit Judges.
PER CURIAM:
Miguel Perez Hernandez appeals his convictions and 181-month sentence
for possession with intent to distribute at least 500 grams of a mixture or substance
containing a detectable amount of methamphetamine, 21 U.S.C. § 841(a)(1) and
(b)(1)(A)(viii) (count 1), and possession of a firearm in connection with a drug
trafficking crime, 18 U.S.C. § 924(c)(1) (count 2), based on his negotiated plea
agreement with the government. T. Stanley Sunderland, appointed counsel for
Hernandez, has moved to withdraw from further representation of Hernandez and
has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,
18 L. Ed.2d 493 (1967). Because independent examination of the record reveals
no arguable issues of merit, counsel’s motion to withdraw is granted. Hernandez’s
convictions and sentences are affirmed.
Hernandez pro se opposes attorney Sunderland’s motion to withdraw,
contends his appeal is meritorious, and raises two of his own arguments on appeal.
Specifically, Hernandez contends: (1) the government breached the plea
agreement when it failed to “seek a downward departure” for “substantial
assistance” that he believes he had provided the government; and (2) that there was
an inadequate factual basis for his guilty plea as to the § 924(c) possession of a
firearm count, as required by Federal Rule of Criminal Procedure 11.
Hernandez’s plea agreement contained a limited appeal waiver provision,
which attorney Sunderland asserts “foreclosed the majority of possible avenues for
appeal.” The provision states the following in relevant part:
To the maximum extent permitted by federal law,
the defendant voluntarily and expressly waives the right
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to appeal sentence and the right to collaterally attack his
sentence in any post-conviction proceeding on any
ground, except that the defendant may file a direct appeal
of an upward departure from the otherwise applicable
sentencing guideline range.
“Waiver will be enforced if the government demonstrates either: (1) the
district court specifically questioned the defendant about the waiver during the plea
colloquy, or (2) the record clearly shows that the defendant otherwise understood
the full significance of the waiver.” United States v. Benitez-Zapata, 131 F.3d
1444, 1446 (11th Cir. 1997).
Here, the district court specifically questioned Hernandez about his sentence
appeal waiver during the plea colloquy, thoroughly explained the limited
circumstances in which he could appeal, and confirmed that Hernandez wanted to
proceed with the waiver. During the plea colloquy, when the district court asked if
he wanted to give up his right to appeal except for the limited circumstance of an
upward departure, Hernandez stated, “That’s okay, yes.” Hernandez’s sentence
appeal waiver is valid and enforceable, and it precludes from appellate review any
potential sentencing issues such as the district court’s application of the Sentencing
Guidelines in a mandatory fashion or the court’s refusal to depart downward.
See Benitez-Zapata, 131 F.3d at 1446.
Hernandez argues in his motion in opposition to his counsel’s Anders’ brief
that the government breached the plea agreement when it failed to seek a
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downward departure or file a motion for reduction in sentence based on
Hernandez’s alleged “substantial assistance.” Hernandez contends that the
government was bound to make such a recommendation and that he is entitled to
“specific performance” of the plea agreement.
There is no arguable merit as to this issue. Hernandez’s plea agreement
clearly states that a decision whether to file a motion for downward departure
pursuant to U.S.S.G. § 5K1.1 or Fed. R. Crim. P. 35(b) is within the discretion of
the government. The plea agreement entered into between Hernandez and the
government states, “In either case, the defendant understands that the
determination as to whether [Hernandez] has provided ‘substantial assistance’ rests
solely with the Government.” It is clear from a plain reading of the plea agreement
the government never promised to do so. See, e.g., United States v. Forney,
9 F.3d 1492, 1499-1501 (11th Cir. 1993) (noting that the government’s refusal to
file a § 5K1.1 motion did not breach a plea agreement that stated only that the
government would consider whether the defendant’s aid qualified as substantial
assistance). The government did not breach the plea agreement and Hernandez is
not entitled to any specific performance. Accordingly, counsel correctly asserts
that there are no issues of arguable merit regarding Hernandez’s sentence.
Hernandez asserts that there was an inadequate factual basis to support his
guilty plea because, he contends, (1) he was not in possession of any firearms at
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the time of his arrest, and (2) there were no drugs present in his house when the
firearms were seized.
The district court determined that there was a factual basis to support a
conviction for possession of a firearm in furtherance of a drug trafficking crime.
The government proffered, and Hernandez even agreed at sentencing, that
Hernandez possessed two firearms – a semi-automatic pistol under a mattress and a
12-gauge shotgun under a window – in the bedroom where he sold
methamphetamine to the confidential informant immediately preceding his arrest
during the transportation of those drugs. It is clear that these firearms were in close
proximity to the drug transaction and were accessible to Hernandez. See Timmons,
283 F.3d at 1253. Given the nexus between the firearms and the drug trafficking, it
was not an abuse of discretion for the district court to determine that the firearm
helped, furthered, promoted, or advanced Hernandez’s drug trafficking, and,
therefore, that there was a factual basis for Hernandez’s guilty plea on this count.
Because no issues of arguable merit have been identified by counsel or
Hernandez, or through this Court’s independent review of the record, counsel’s
motion to withdraw is GRANTED. Hernandez’s convictions and sentences are
AFFIRMED.
COUNSEL’S MOTION TO WITHDRAW IS GRANTED; AND THE
CONVICTIONS AND SENTENCES AFFIRMED.
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