United States v. Breton-Pichardo , 155 F. App'x 709 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4883
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE BRETON-PICHARDO, a/k/a Rolando Berberena,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-8495)
Submitted: October 14, 2005 Decided: December 1, 2005
Before WILLIAMS, MICHAEL, and KING, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Barron M. Helgoe, VICTOR, VICTOR & HELGOE, L.L.P., Charleston, West
Virginia, for Appellant. John L. Brownlee, United States Attorney,
William F. Gould, Assistant United States Attorney,
Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jose Breton-Pichardo appealed his conviction and 262-
month sentence following his guilty plea to one count of conspiracy
to possess with intent to distribute more than fifty grams of
cocaine base (“crack”), in violation of 21 U.S.C. § 846 (2000).
Breton-Pichardo’s appellate counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting ineffective
assistance of trial counsel. This court granted counsel’s motion
to file a supplemental brief asserting a claim under Blakely v.
Washington, 542 U.S. 296 (2004),* and, in the same opinion,
affirmed Breton-Pichardo’s conviction and sentence. See United
States v. Breton-Pichardo, No. 03-4883, 2004 WL 2712440 (4th Cir.
Nov. 30, 2004) (unpublished). The United States Supreme Court
granted Breton-Pichardo’s petition for writ of certiorari, vacated
our judgment, and remanded the case to this court for further
consideration in light of United States v. Booker, 125 S. Ct. 738(2005).
The government has moved to dismiss the appeal based upon
Breton-Pichardo’s waiver of appellate rights. In his plea
agreement, Breton-Pichardo waived the right to appeal sentencing
guidelines factors. In United States v. Blick, 408 F.3d 162 (4th
Cir. 2005), this court determined that a waiver of the right to
appeal in a plea agreement entered into prior to the Supreme
*
Breton-Pichardo also filed a pro se supplemental brief.
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Court’s decision in Booker was not invalidated by the change in law
and that Booker error fell within the scope of a generic waiver.
Blick, 408 F.3d at 169-70.
We find that Breton-Pichardo knowingly and voluntarily
waived appellate review of Booker claims. Accordingly, we grant
the government’s motion to dismiss and dismiss this portion of the
appeal. We also reinstate our November 30, 2004 opinion affirming
the district court’s judgment in all other respects. 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 AND DISMISSED IN PART
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