United States v. Faustino Soriano-Flores , 526 F. App'x 260 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4447
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FAUSTINO SORIANO-FLORES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:11-cr-00246-JFA-6)
Submitted: April 22, 2013 Decided: May 3, 2013
Before AGEE, DAVIS, and DIAZ, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
John E. Duncan, Lexington, South Carolina, for Appellant.
Mark C. Moore, Stanley D. Ragsdale, Assistant United States
Attorneys, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Faustino Soriano-Flores pleaded guilty to conspiracy
to possess with intent to distribute and distribute marijuana,
in violation of 21 U.S.C. § 846 (2006). The district court
sentenced Soriano-Flores to 135 months of imprisonment and he
now appeals. Appellate counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), questioning whether
the district court fully complied with Fed. R. Crim. P. 11 and
whether Soriano-Flores’ sentence is reasonable. Soriano-Flores
was informed of his right to file a pro se supplemental brief,
but he has not done so. In addition, the Government has filed a
motion to dismiss the appeal based on the waiver in the plea
agreement. We previously deferred ruling on that motion pending
the filing of the parties’ briefs. For the reasons that follow,
we affirm the conviction and dismiss Soriano-Flores’ appeal of
his sentence.
Counsel first questions whether the district court
complied with Rule 11. The purpose of the Rule 11 colloquy is
to ensure that the plea of guilt is entered into knowingly and
voluntarily. See United States v. Vonn, 535 U.S. 55, 58 (2002).
Accordingly, prior to accepting a guilty plea, a trial court,
through colloquy with the defendant, must inform the defendant
of, and determine that he understands, the nature of the charges
to which the plea is offered, any mandatory minimum penalty, the
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maximum possible penalty he faces, and the various rights he is
relinquishing by pleading guilty. Fed. R. Crim. P. 11(b). The
court also must determine whether there is a factual basis for
the plea. Id.; United States v. DeFusco, 949 F.2d 114, 120 (4th
Cir. 1991). As Soriano-Flores did not move in the district
court to withdraw his guilty plea, any error in the Rule 11
hearing is reviewed for plain error. United States v. Martinez,
277 F.3d 517, 525 (4th Cir. 2002).
Moreover, pursuant to a plea agreement, a defendant
may waive his appellate rights under 18 U.S.C. § 3742 (2006).
United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). A
waiver will preclude appeal of a specific issue if the waiver is
valid and the issue is within the scope of the waiver. United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). The
question of whether a defendant validly waived his right to
appeal is a question of law that this court reviews de novo.
Id. at 168.
“The validity of an appeal waiver depends on whether
the defendant knowingly and intelligently agreed to waive the
right to appeal.” Id. at 169 (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
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agreement.” United States v. General, 278 F.3d 389, 400 (4th
Cir. 2002) (internal quotation marks and citation omitted).
Generally, if the district 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); United
States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991).
We have thoroughly reviewed the record and conclude
that the district court fully complied with the requirements of
Rule 11. We further conclude that Soriano-Flores’ guilty plea
and waiver of his appellate rights was knowing, intelligent, and
voluntary. As the appellate waiver included Soriano-Flores’
right to appeal any sentence below life imprisonment, he has
waived appellate review of his sentence.
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. Accordingly, we affirm the conviction, grant the
Government’s motion to dismiss in part, and dismiss
Soriano-Flores’ appeal of his sentence. This court requires
that counsel inform Soriano-Flores, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Soriano-Flores 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
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representation. Counsel’s motion must state that a copy thereof
was served on Soriano-Flores. 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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