United States v. Raul Tronco-Ramirez ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5215
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAUL TRONCO-RAMIREZ, a/k/a Carlos Cruz Perez, a/k/a Carlos
Cruz, a/k/a Godfather, a/k/a Padrino,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Michael F. Urbanski,
District Judge. (5:10-cr-00028-MFU-JGW-4)
Submitted: July 19, 2012 Decided: July 27, 2012
Before AGEE, KEENAN, and WYNN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
David L. Parker, DAVID L. PARKER, P.C., Harrisonburg, Virginia,
for Appellant. Timothy J. Heaphy, United States Attorney, Jean
B. Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raul Tronco-Ramirez pled guilty, pursuant to a written
plea agreement, to conspiracy to distribute methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1), 846 (2006), possession with
intent to distribute methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1), and possession of a firearm in furtherance of a
drug trafficking crime, in violation of 21 U.S.C. § 841 and 18
U.S.C. § 924(c)(1) (2006). The district court sentenced Tronco-
Ramirez to 300 months’ imprisonment, followed by five years of
supervised release. Tronco-Ramirez’s counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that he could find no meritorious issues for appeal, but
questioning whether the trial court erred (1) by accepting the
plea agreement and failing to impose a sentence below the
advisory Guidelines range; or (2) by failing to apply the
safety-valve statute under 18 U.S.C. § 3553(f) to sentence
Tronco-Ramirez below the statutorily-mandated minimum term of
imprisonment. Tronco-Ramirez has filed an informal brief,
arguing that his 300-month sentence is unreasonable.
In response, the Government argues that Tronco-
Ramirez’s sentencing challenges are barred by the appellate
waiver provision in his plea agreement. We review de novo
whether a defendant has effectively waived his right to appeal.
United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). An
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appellate waiver must be “the result of a knowing and
intelligent decision to forgo the right to appeal.” United
States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995)
(internal quotation marks and citation omitted). 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 and citation omitted).
Generally, if a court fully questions a defendant regarding the
waiver of his right to appeal during the Rule 11 colloquy, the
waiver is both valid and enforceable. United States v. Johnson,
410 F.3d 137, 151 (4th Cir. 2005). However, this court will
“refuse to enforce an otherwise valid waiver if to do so would
result in a miscarriage of justice.” Id. (internal quotation
marks and citation omitted).
Upon review of the plea agreement and the transcript
of the Fed. R. Crim. P. 11 hearing, we conclude that Tronco-
Ramirez knowingly and voluntarily waived his right to appeal his
sentence. A Spanish-speaking interpreter read the plea
agreement to Tronco-Ramirez, line by line, and translated the
plea agreement into Spanish for him to read, ensuring that he
understood its terms. In addition, at the Rule 11 hearing, the
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court reviewed the plea agreement in depth, discussing the
mandatory minimum sentences associated with each charge and
highlighting the fact that Tronco-Ramirez faced a total
mandatory minimum sentence of no less than forty years’
imprisonment should he proceed to trial. After the Government
read its essential terms into the record, the court reiterated
that Tronco-Ramirez waived the right to appeal his sentence in
the plea agreement. Tronco-Ramirez, forty-two-years-old with an
eighth grade education, indicated that he understood the plea
agreement and did not have any questions. Of significance,
Tronco-Ramirez does not challenge the validity of the waiver
provision in his Anders brief or in his informal brief.
Accordingly, the waiver provision is valid and enforceable.
In the plea agreement, Tronco-Ramirez agreed to waive
the right to appeal his sentence “on any ground,” reserving only
the right to collaterally attack his convictions and sentence
based upon ineffective assistance of counsel. As the Government
seeks to enforce the waiver provision and the issues raised by
Tronco-Ramirez fall within the scope of his appellate waiver,
this court is precluded from considering his sentencing
arguments on appeal. We therefore dismiss Tronco-Ramirez’s
appeal of his sentence.
The waiver provision, however, does not preclude this
court’s review of Tronco-Ramirez’s convictions pursuant to
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Anders. Prior to accepting a guilty plea, a trial court must
conduct a plea colloquy in which it informs the defendant of,
and determines that the defendant comprehends, the nature of the
charge to which he is pleading guilty, any mandatory minimum
penalty, the maximum possible penalty he faces, and the rights
he is relinquishing by pleading guilty. Fed. R. Crim. P. 11(b);
United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
Additionally, the district court must ensure that the
defendant’s plea was voluntary and did not result from force,
threats, or promises not contained in the plea agreement. Fed.
R. Crim. P. 11(b)(2).
Because Tronco-Ramirez did not move to withdraw his
guilty plea in the district court or raise any objections to the
Rule 11 colloquy, the colloquy is reviewed for plain error.
United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002).
To demonstrate plain error, a defendant must show that (1) there
was an error; (2) the error was plain; and (3) the error
affected his “substantial rights.” United States v. Olano, 507
U.S. 725, 732 (1993). To establish that a Rule 11 error has
affected a defendant’s substantial rights, the defendant “must
show a reasonable probability that, but for the error, he would
not have entered the plea.” United States v. Dominguez Benitez,
542 U.S. 74, 83 (2004).
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We find that the district court complied with the
requirements of Rule 11. The court ensured that Tronco-
Ramirez’s guilty plea was knowing and voluntary, that he
understood the rights he was giving up by pleading guilty and
the statutorily-mandated minimum sentence that he faced, and
that he committed the offenses to which he pled guilty. In
accordance with Anders, we have reviewed the record and have
found no meritorious issues for appeal. We therefore affirm
Tronco-Ramirez’s convictions.
This court requires that counsel inform Tronco-
Ramirez, in writing, of his right to petition the Supreme Court
of the United States for further review. If Tronco-Ramirez
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, counsel may move in this
court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Tronco-
Ramirez. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED IN PART;
DISMISSED IN PART
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