United States v. Albert Espinoza , 457 F. App'x 241 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4908
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ALBERT ESPINOZA, a/k/a Bert,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Martin K.
Reidinger, District Judge. (2:09-cr-00029-MR-1)
Submitted: October 4, 2011 Decided: December 12, 2011
Before TRAXLER, Chief Judge, and GREGORY and WYNN, Circuit
Judges.
Dismissed by unpublished per curiam opinion.
L. Aron Pena, Edinburg, Texas, for Appellant. Anne M. Tompkins,
United States Attorney, Richard Lee Edwards, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Albert Espinoza pled guilty to conspiracy to possess
with intent to distribute at least 1000 kilograms of marijuana,
in violation of 21 U.S.C. §§ 846, 841(b)(1)(A) (2006). In the
plea agreement, Espinoza agreed to cooperate by providing
truthful testimony and information and waived all rights to
contest his conviction and sentence, except for claims of
ineffective assistance of counsel or prosecutorial misconduct.
The plea agreement further provided that the Government had the
sole discretion to determine whether Espinoza provided
substantial assistance warranting a motion for a departure
pursuant to U.S. Sentencing Guidelines Manual (USSG) § 5K1.1
(2009). Espinoza also waived all objections and rights to
appeal or collaterally attack the Government’s determination
that he failed to provide substantial information or knowingly
provided false information.
Prior to sentencing, the Government filed a motion for
a downward departure pursuant to USSG § 5K1.1 based on
Espinoza’s substantial assistance. However, following
Espinoza’s testimony at sentencing and based on its
determination that he made false statements therein, the
Government withdrew the motion and sought a two-level increase
for obstruction of justice under USSG § 3C1.1. The plea
agreement stated that, regardless of any substantial assistance,
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“the United States will not move for a reduction in sentence and
may seek an increased sentence if the defendant knowingly
furnishes materially false information.” The sentencing court
denied the increase for obstruction of justice, did not consider
the withdrawn USSG § 5K1.1 motion, and sentenced Espinoza within
the advisory Guidelines sentencing range to 210 months of
imprisonment.
On appeal, Espinoza argues that the Government
breached the plea agreement by withdrawing its USSG § 5K1.1
motion and that counsel provided ineffective assistance at
sentencing. In addition, he asserts four claims of sentencing
error by the district court. In response, the Government argues
that Espinoza validly waived the right to appeal his conviction
and sentence, that it did not breach the plea agreement, and
that Espinoza’s claim of ineffective assistance of counsel,
although excepted from the appellate waiver, is not supported by
the record and therefore is not cognizable on direct appeal. We
dismiss.
Espinoza does not challenge the validity of his plea
or the waiver of his right to appeal. Instead, Espinoza
contends that the appeal waiver is unenforceable because the
Government breached the plea agreement containing the waiver by
withdrawing its USSG § 5K1.1 motion and seeking sentencing
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enhancements. United States v. Cohen, 459 F.3d 490, 495 (4th
Cir. 2006).
Our review of the record and the plain language of the
plea agreement lead us to conclude that the Government acted
within its discretion and did not breach the plea agreement.
Wade v. United States, 504 U.S. 181, 184-87 (1992) (in absence
of cooperation agreement, Government’s decision regarding
§ 5K1.1 motion is reviewed to determine whether it was based on
an unconstitutional motive); United States v. Hartwell, 448 F.3d
707, 718 (4th Cir. 2006). Because there was no breach, the
waiver of appeal is valid and enforceable as to all substantive
sentencing issues asserted by Espinoza. Accordingly, we dismiss
that portion of Espinoza’s appeal.
Moreover, we find no conclusive evidence of
ineffective assistance of counsel and therefore decline to
address Espinoza’s claim of ineffective assistance of counsel at
this time. See, e.g., United States v. Benton, 523 F.3d 424,
435 (4th Cir. 2008) (“Ineffective assistance claims are
generally not cognizable on direct appeal, however, unless it
conclusively appears from the record that defense counsel did
not provide effective representation.” (internal quotation marks
and citation omitted)); United States v. Richardson, 195 F.3d
192, 198 (4th Cir. 1999) (“A claim of ineffective assistance of
counsel should be raised by a habeas corpus motion under 28
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U.S.C. § 2255 in the district court and not on direct appeal,
unless it conclusively appears from the record that defense
counsel did not provide effective representation.” (internal
quotation marks and citation omitted)).
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.
DISMISSED
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