United States v. Nestor Roca , 518 F. App'x 151 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4733
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NESTOR VLADAMIR SANDOVAL ROCA, a/k/a Poeta, a/k/a William
Bladamir Mexmurillo Zapatero, a/k/a Stanley Turcio Palma,
a/k/a William Santander Mendoza, a/k/a Hamilton Bachelet
Soto, a/k/a Benjamil Ortiz, a/k/a William Zapatero, a/k/a
Max, a/k/a Lzandra Santander Orester, a/k/a Jorge Alberto
Medina Alonso,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:10-
cr-00472-RWT-1)
Submitted: March 28, 2013 Decided: April 9, 2013
Before DAVIS, KEENAN, and FLOYD, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Marta K. Kahn, THE LAW OFFICE OF MARTA K. KAHN, LLC, Baltimore,
Maryland, for Appellant. Christen Anne Sproule, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nestor Vladamir Sandoval Roca pled guilty, pursuant to
a written plea agreement, to conspiracy to distribute and
possess with intent to distribute at least 280 grams of cocaine
base and at least five kilograms of cocaine, in violation of 21
U.S.C. § 846 (2006); two counts of possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006);
and unauthorized re-entry of a deported alien after conviction
of an aggravated felony, in violation of 8 U.S.C. § 1326(a),
(b)(2) (2006). On appeal, Roca asserts that the trial court
erred in its calculation of his criminal history and that trial
counsel was ineffective in failing to object to the trial
court’s calculation of Roca’s criminal history. Relying on the
waiver of appellate rights in Roca’s plea agreement, the
Government has moved to dismiss this appeal. We dismiss in part
and affirm in part.
Pursuant to a plea agreement, a defendant may waive
his appellate rights. United States v. Manigan, 592 F.3d 621,
627 (4th Cir. 2010). A waiver will preclude an appeal of “a
specific issue if . . . the waiver is valid and . . . the issue
being appealed is within the scope of the waiver.” United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). The
question whether a defendant validly waived his right to appeal
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is a question of law that this court reviews de novo. Manigan,
592 F.3d at 626.
“An appellate waiver is valid if the defendant
knowingly and intelligently agreed to [waive the right to
appeal].” Id. at 627. To determine whether a waiver is knowing
and intelligent, we examine “the totality of the circumstances.”
Id. (internal quotation marks omitted). “An important factor in
such an evaluation is whether the district court sufficiently
explained the waiver to the defendant during the Federal Rule of
Criminal Procedure 11 plea colloquy.” Id.; see United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
Roca does not challenge the validity of his guilty
plea but does challenge the validity of the waiver of his
appellate rights. Our review of the record leads us to conclude
that Roca’s appellate waiver was both knowing and voluntary.
Because the waiver is valid and precludes Roca’s challenge to
the calculation of his criminal history category, we grant in
part the Government’s motion to dismiss and dismiss this portion
of the appeal.
Although Roca’s challenge to his sentence is barred,
the appellate waiver does not bar his claim that trial counsel
was ineffective. See Johnson, 410 F.3d at 151 (stating
ineffective assistance claims following entry of guilty plea
cannot be waived); see also Strickland v. Washington, 466 U.S.
3668, 688, 694 (1984) (providing standard). Nevertheless,
ineffective assistance of counsel claims are not generally
cognizable on appeal unless ineffective assistance “conclusively
appears from the record.” United States v. Baldovinos, 434 F.3d
233, 239 (4th Cir. 2006). Because ineffective assistance does
not conclusively appear on this record, we decline to review
Roca’s claim. Roca must bring his claim — if at all — in a 28
U.S.C.A. § 2255 (West Supp. 2012) motion in order to allow for
adequate development of the record. See United States v.
Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).
Accordingly, we deny in part the Government’s motion
to dismiss and affirm the remainder of the judgment. 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
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