United States v. Jose Pineda-Gomez , 500 F. App'x 207 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4101
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSE PINEDA-GOMEZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Richard M. Gergel, District
Judge. (2:10-cr-01104-RMG-7)
Submitted: November 20, 2012 Decided: December 6, 2012
Before AGEE, DAVIS, and FLOYD, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Robert Snead, Greenville, South Carolina; Janis Richardson Hall,
Greenville, South Carolina, for Appellant. William Norman
Nettles, United States Attorney, Columbia, South Carolina; Peter
T. Phillips, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Pineda-Gomez pled guilty pursuant to a written
plea agreement to conspiracy to distribute five kilograms or
more of cocaine, money laundering and possession of a firearm by
an illegal alien. On appeal, counsel for Pineda-Gomez has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting that there are no meritorious issues for appeal but
questioning whether Pineda-Gomez’s conviction for possession of
a firearm by an illegal alien in his home violates the Second
Amendment of the United States Constitution. The Government
asserts that the appeal should be dismissed as barred by
Pineda-Gomez’s waiver of the right to appeal included in the
plea agreement. Pineda-Gomez was advised of his right to file a
pro se supplemental brief, but has not done so.
Upon review of the plea agreement and the transcript
of the hearing pursuant to Fed. R. Crim. P. 11, we conclude that
Pineda-Gomez knowingly and intelligently waived his right to
appeal his conviction and sentence. Accordingly, because the
waiver of appeal is valid and the Government now seeks to
enforce it, we dismiss Pineda-Gomez’s appeal as to his Second
Amendment challenge to his conviction of possession of a firearm
by an illegal alien, as it is within the scope of the waiver.
We have reviewed the entire record in accordance with Anders and
have discerned no meritorious issues for appeal outside the
2
scope of the waiver. We therefore affirm the district court’s
judgment as to all issues not encompassed by Pineda-Gomez’s
valid waiver of appellate rights.
This court requires that counsel inform Pineda-Gomez,
in writing, of the right to petition the Supreme Court of the
United States for further review. If Pineda-Gomez 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 Pineda-Gomez. Finally,
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 IN PART;
AFFIRMED IN PART
3