United States v. Bartolo Penaloza-Maldonado , 677 F. App'x 105 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4467
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BARTOLO PENALOZA-MALDONADO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:15-cr-00093-FL-1)
Submitted: February 16, 2017 Decided: February 21, 2017
Before GREGORY, Chief Judge, DUNCAN, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Todd A. Smith, LAW OFFICE OF TODD ALLEN SMITH, Graham, 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Unpublished opinions are not binding precedent in this circuit.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:
Bartolo Penaloza-Maldonado appeals his conviction and
sentence of 88 months of imprisonment for conspiracy to distribute
and possess with intent to distribute cocaine and methamphetamine,
in violation of 21 U.S.C. §§ 841(b)(1)(A), 846 (2012), and
possession of a firearm in furtherance of a drug trafficking crime,
in violation of 18 U.S.C. § 924(c)(1)(A) (2012). Appellate counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), concluding that there are no meritorious issues for appeal,
but questioning whether Penaloza-Maldonado’s appellate waiver is
valid, whether his plea was knowing and voluntary, and whether the
sentence imposed by the district court was reasonable. We affirm.
We review the validity of an appeal waiver de novo and “will
enforce the waiver if it is valid and the issue appealed is within
the scope of the waiver.” United States v. Adams, 814 F.3d 178,
182 (4th Cir. 2016). “In the absence of extraordinary
circumstances, a properly conducted Rule 11 colloquy establishes
the validity of the waiver.” Id.
Based on our review of the record, we conclude that Penaloza-
Maldonado’s Rule 11 colloquy was properly conducted, and Penaloza-
Maldonado knowingly and voluntarily agreed to waive his appellate
rights. Consequently, we conclude that Penaloza-Maldonado’s
appellate waiver is valid. Because the Government has not invoked
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the waiver, however, it does not limit our review. See United
States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).
Next, a guilty plea is valid where the defendant voluntarily,
knowingly, and intelligently pleads guilty “with sufficient
awareness of the relevant circumstances and likely consequences.”
United States v. Fisher, 711 F.3d 460, 464 (4th Cir. 2013)
(internal quotation marks omitted). Before accepting a guilty
plea, a district court must ensure that the plea is knowing,
voluntary, and supported by an independent factual basis. Fed. R.
Crim. P. 11(b); United States v. DeFusco, 949 F.2d 114, 116 (4th
Cir. 1991).
Because Penaloza-Maldonado neither raised an objection during
the Fed. R. Crim. P. 11 proceeding nor moved to withdraw his guilty
plea in the district court, we review his Rule 11 proceeding for
plain error. United States v. Sanya, 774 F.3d 812, 815 (4th Cir.
2014). Our review of the record reveals that the district court
fully complied with Rule 11 in accepting Penaloza-Maldonado’s
guilty plea after a thorough hearing. Accordingly, we conclude
that his plea was knowing and voluntary, see Fisher, 711 F.3d at
464, and thus “final and binding,” United States v. Lambey, 974
F.2d 1389, 1394 (4th Cir. 1992) (en banc).
We review Penaloza-Maldonado’s sentence for reasonableness
“under a deferential abuse-of-discretion standard.” United
States v. McCoy, 804 F.3d 349, 351 (4th Cir. 2015) (quoting Gall v.
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United States, 552 U.S. 38, 41 (2007)), cert. denied, 137 S. Ct.
320 (2016). This review entails appellate consideration of both
the procedural and substantive reasonableness of the sentence.
Gall, 552 U.S. at 51. We presume that a sentence imposed within
the properly calculated Sentencing Guidelines range is reasonable.
United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
We have reviewed the record and conclude that the court
properly calculated the Guidelines range, treated the Guidelines
as advisory rather than mandatory, gave the parties an opportunity
to argue for an appropriate sentence, considered the 18 U.S.C.
§ 3353(a) factors, selected a sentence not based on clearly
erroneous facts, and sufficiently explained the chosen sentence.
Furthermore, Penaloza-Maldonado’s sentence of 88 months fell below
the range recommended by the Guidelines. Therefore, we conclude
that Penaloza-Maldonado’s sentence is reasonable.
In accordance with Anders, we have reviewed the entire 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 Penaloza-Maldonado, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Penaloza-Maldonado 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
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withdraw from representation. Counsel’s motion must state that a
copy thereof was served on Penaloza-Maldonado.
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.
AFFIRMED
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