United States v. Aparicio , 304 F. App'x 213 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5005
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ELSY APARICIO, a/k/a/ Yolanda Aparicio,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:05-cr-00451-AW-1)
Submitted: November 21, 2008 Decided: December 22, 2008
Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
John M. McKenna, BRENNAN SULLIVAN & MCKENNA LLP, Greenbelt,
Maryland, for Appellant. Chan Park, Assistant United States
Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Elsy Aparicio pled guilty pursuant to a written plea
agreement to conspiracy to violate the Mann Act and conspiracy
to launder money, in violation of 18 U.S.C. §§ 371, 1956(h)
(2006). Aparicio was sentenced to a total term of thirty
months’ imprisonment. We grant the Government’s motion to
dismiss the appeal.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting there are no
meritorious grounds for appeal, but questioning whether
Aparicio’s sentence is reasonable. Aparicio was notified of her
right to file a pro se supplemental brief, but did not do so.
The Government moves to dismiss the appeal, asserting the issue
raised by counsel is precluded by the waiver of appellate rights
in Aparicio’s plea agreement. Aparicio opposes the motion.
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006). United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). “Whether a defendant
has effectively waived the right to appeal is an issue of law
that we review de novo.” United States v. Blick, 408 F.3d 162,
168 (4th Cir. 2005).
Where, as here, the United States seeks enforcement of
an appeal waiver and there is no claim that the United
States breached its obligations under the plea
agreement, we will enforce the waiver to preclude a
defendant from appealing a specific issue if the
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record establishes that the waiver is valid and that
the issue being appealed is within the scope of the
waiver.
Id. (internal citations omitted). An appeal waiver is valid if
the defendant knowingly and intelligently agreed to waive her
right to appeal. Id. at 169. However, “[a]n appeal waiver is
not knowingly or voluntarily made if the district court fails to
specifically question the defendant concerning the waiver
provision of the plea agreement during the [Fed. R. Crim. P.] 11
colloquy and the record indicates that the defendant did not
otherwise understand the full significance of the waiver.”
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005)
(internal quotation marks omitted).
The language in the plea agreement is clear and
unambiguous. Under the terms outlined in paragraph nineteen,
Aparicio waived the right “to appeal whatever sentence is
imposed, including . . . any issues that relate to the
establishment of the advisory guidelines range, as follows: the
Defendant waives any right to appeal from any sentence within or
below the advisory guidelines range resulting from an adjusted
base offense level of 22 . . . .”
At the Rule 11 hearing, it was established that
Aparicio was forty-four years old and had completed two years of
post-high school study at a university in El Salvador. She did
not have a history of mental illness or substance abuse.
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Aparicio confirmed she had “gone through” the agreement with her
attorney (aided by an interpreter) and signed it. The district
court specifically questioned Aparicio regarding the appeal
waiver, and Aparicio responded that she understood its effects.
Therefore, we conclude the appeal waiver is both valid and
enforceable. Further, because the issue raised on Aparicio’s
behalf clearly falls within the scope of the waiver, we conclude
the terms of the agreement should be enforced.
Accordingly, we grant the Government’s motion to
dismiss the appeal. 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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