United States v. Daniel Luna ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4003
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL LUNA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. David A. Faber,
Senior District Judge. (7:12-cr-00037-FA-5)
Submitted: November 17, 2015 Decided: December 17, 2015
Before GREGORY, WYNN, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Joseph L. Bell, Jr., BATTS, BATTS & BELL, LLP, Rocky Mount,
North Carolina, for Appellant. Jennifer P. May-Parker, Phillip
Anthony Rubin, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Daniel Luna pled
guilty to: conspiracy to commit Hobbs Act robbery; using and
carrying a firearm in furtherance of a crime of violence;
conspiracy to distribute and to possess with intent to
distribute more than five kilograms of cocaine; and kidnapping.
He received an aggregate sentence of 280 months. Luna appeals,
contending that the sentence is substantively unreasonable.
The United States moves to dismiss the appeal based on a
waiver-of-appellate-rights provision in Luna’s plea agreement.
Luna opposes the motion, claiming that the waiver is invalidated
by the United States’ alleged breach of the agreement. We grant
the motion to dismiss the appeal.
I
Luna contends that the Government breached its promise in
the plea agreement to inform the court at sentencing of the
“full extent” of his cooperation with authorities. Because Luna
did not raise this claim before the district court, our review
is for plain error. See Puckett v. United States, 556 U.S. 129,
133-34 (2009). To prevail under this standard, Luna must
demonstrate “that an error occurred, that the error was plain,
and that the error affected his substantial rights.” United
States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007).
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We conclude that there was no error in the Government’s
conduct. At sentencing, the Government described Luna’s
cooperation to the court. After Luna’s attorney objected that
the Government had not described the full value of Luna’s
cooperation, there was extensive discussion about the nature and
effect of his cooperation. Under these circumstances, we find
that the Government fulfilled its obligation under the plea
agreement and that there was no breach. See United States v.
Godwin, 189 F. App’x 277, 279 (4th Cir. 2006) (No. 05-4987).
II
Given the lack of a breach by the Government, we next
consider whether Luna knowingly and intelligently waived his
right to appeal and whether the issue raised on appeal falls
within the scope of the waiver. See United States v. Blick, 408
F.3d 162, 168-69 (4th Cir. 2005). To decide whether the waiver
was knowing and intelligent, we consider “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 we consider are whether
the waiver language in the plea agreement was “unambiguous” and
“plainly embodied,” and whether the district court fully
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questioned the defendant during the Fed. R. Crim. P. 11 colloquy
regarding the waiver. Id. at 400-401. Generally, if the
district court specifically asked the defendant about the waiver
or the record otherwise indicates that the defendant understood
the full significance of the waiver, the waiver is valid.
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
Whether a defendant validly waived his right to appeal “is a
matter of law that we review de novo.” United States v.
Manigan, 592 F.3d 621, 626 (4th Cir. 2010).
Luna was twenty years old when he entered his plea. He had
an eleventh-grade education, had not been treated for mental
illness or addiction within the prior two years and was not
presently under the influence of alcohol or drugs. The waiver
provision was set forth clearly in a separate paragraph of the
plea agreement, which Luna signed. Further, the Government
summarized the plea agreement — including the waiver provision —
at the Fed. R. Civ. P. 11 proceeding. Luna assured the court
that the summary was accurate, he had carefully read the
agreement and discussed it with his attorney, and he understood
everything in the agreement. Finally, the district court
inquired during the plea colloquy whether Luna understood that
the plea agreement limited his appellate rights, and Luna
replied that he did. We conclude that the waiver is valid and
enforceable. Further, the issue Luna raises on appeal — whether
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his sentence is substantively unreasonable — falls squarely
within the scope of the appellate waiver.
III
Accordingly, we grant the motion to dismiss the appeal. We
dispense with oral argument because the facts and legal
arguments are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
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