United States v. Orbin Mendoza-Argueta , 701 F. App'x 218 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4661
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ORBIN ADALI MENDOZA-ARGUETA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. James K. Bredar, District Judge.
(1:15-cr-00286-JKB-1)
Submitted: February 13, 2017 Decided: July 13, 2017
Before GREGORY, Chief Judge, THACKER, Circuit Judge, and DAVIS,
Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
A.D. Martin, LAW OFFICE OF ANTHONY D. MARTIN, Greenbelt,
Maryland, for Appellant. Michael Clayton Hanlon, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In accordance with a written plea agreement, Orbin Adali
Mendoza-Argueta (Mendoza) pled guilty to possession of firearms
by an alien illegally and unlawfully in the United States, 18
U.S.C. § 922(g)(5) (2012). He was sentenced to 42 months in
prison. Mendoza now appeals. His attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), claiming
that the sentence is unreasonable. Mendoza has filed a pro se
supplemental brief challenging both his conviction and sentence.
The United States moves to dismiss the appeal based upon a
waiver-of-appellate-rights provision in the plea agreement.
Mendoza opposes the motion. We grant the motion to dismiss the
appeal.
I
We review de novo the validity of an appeal waiver. United
States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013). Where
the Government seeks to enforce an appeal waiver and did not
breach its obligations under the plea agreement, we will enforce
the waiver if the record establishes that (1) the defendant
knowingly and intelligently waived his right to appeal, and
(2) the issues raised on appeal fall within the scope of the
waiver. United States v. Blick, 408 F.3d 162, 168-69 (4th Cir.
2005).
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A
To determine whether a waiver is knowing and intelligent,
we examine “the totality of the circumstances, including the
experience and conduct of the accused, as well as the accused’s
educational background and familiarity with the terms of the
plea agreement.” United States v. General, 278 F.3d 389, 400
(4th Cir. 2002) (internal quotation marks omitted). Other
factors to be considered are whether the waiver language in the
plea agreement was “unambiguous” and “plainly embodied,” and
whether the district court fully questioned the defendant during
the Fed. R. Crim. P. 11 colloquy regarding the waiver of his
right to appeal. Id. at 400-01; see United States v. Johnson,
410 F.3d 137, 151 (4th Cir. 2005); United States v. Wessells,
936 F.3d 165, 167-68 (4th Cir. 1991). Generally, if the
district court specifically questioned the defendant regarding
the waiver during the colloquy or the record otherwise indicates
that the defendant understood the full significance of the
waiver, the waiver is valid. Johnson, 410 F.3d at 151.
Mendoza’s plea agreement provided in relevant part:
The Defendant knowingly waives all right . . . to
appeal the Defendant’s conviction. . . . The Defendant
. . . knowingly waive[s] all right to appeal whatever
sentence is imposed (including the right to appeal any
issues that relate to the establishment of the
advisory guidelines range, the determination of the
defendant’s criminal history, the weighing of the
sentencing factors, and the decision whether to impose
and the calculation of any term of imprisonment, fine,
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order of forfeiture, order of restitution, and term or
condition of supervised release.
In signing the agreement, Mendoza acknowledged:
I have read this agreement . . . and carefully
reviewed every part of it with my attorney. I
understand it, and I voluntarily agree to it. . . . I
am completely satisfied with the representation of my
attorney.
At the Rule 11 hearing, Mendoza advised the court that he
was 37, had the equivalent of a high school education, and was
not under the influence of any medication or alcohol. He stated
that he was pleading guilty freely and voluntarily and that the
factual basis offered in support of the plea was accurate. He
was entirely satisfied with his attorney’s services. He had
read the plea agreement, which he understood, and had discussed
it with his attorney. The court reviewed the terms of the
appellate waiver with Mendoza, who said that he understood it.
Our review of the hearing transcript discloses that the court
fully complied with Rule 11.
We conclude that, under the totality of the circumstances,
Mendoza knowingly and voluntarily waived his right to appeal
both his conviction and sentence.
B
Under Blick, the next question is whether the issues
Mendoza seeks to raise on appeal fall within the scope of the
waiver. We conclude that they do. The only issues raised in
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the briefs are whether the conviction is valid and whether the
sentence is reasonable. Those issues are clearly encompassed by
the waiver. We therefore hold that Mendoza validly waived his
right to challenge his conviction and sentence.
II
Pursuant to Anders, we have reviewed the entire record and
have found no meritorious issues for appeal. Accordingly, we
grant the motion to dismiss the appeal. This court requires
that counsel inform Mendoza, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Mendoza 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 Mendoza. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
DISMISSED
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