United States v. Tovar-Avila , 281 F. App'x 202 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4811
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEJANDRO SOCORRO TOVAR-AVILA, a/k/a Jhonathan Calvin Mitchell,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Robert G. Doumar, Senior
District Judge. (4:06-cr-00105-RGD)
Submitted: March 28, 2008 Decided: June 13, 2008
Before MICHAEL and TRAXLER, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Keith Loren
Kimball, Assistant Federal Public Defender, Norfolk, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Scott W.
Putney, Assistant United States Attorney, Newport News, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alejandro Socorro Tovar-Avila pled guilty pursuant to a
written plea agreement to conspiracy to possess with intent to
distribute and to distribute cocaine and heroin, in violation of 21
U.S.C. § 846 (2000). Tovar-Avila was sentenced to the statutory
minimum of 120 months’ imprisonment. We grant the Government’s
motion to dismiss the appeal.
On appeal, Tovar-Avila contends the district court erred
in denying him application of the “safety valve” provision of U.S.
Sentencing Guidelines Manual § 5C1.2(a) (2006). The Government,
however, asserts this claim is precluded by the waiver of appellate
rights in Tovar-Avila’s plea agreement, according to which he
waived “the right to appeal the conviction and any sentence within
the statutory maximums . . . (or the manner in which that sentence
was determined) on the grounds set forth in Title 18, United States
Code, Section 3742, or on any ground whatsoever . . . .”
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2000). 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 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
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appealing a specific issue if the 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 his 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. At the Rule 11 hearing, it was established that
Tovar-Avila was thirty-four years old, had completed the ninth
grade, and could read and write. He did not have a history of
mental illness or substance abuse. Tovar-Avila confirmed he had
not only signed the plea agreement, but had also initialed each
page after reading it. He further acknowledged that he had
discussed the agreement with his counsel prior to signing. The
district court specifically questioned Tovar-Avila regarding the
appellate waiver, and Tovar-Avila responded that he understood its
effects. Therefore, we conclude the appellate waiver is both valid
and enforceable. Further, because Tovar-Avila’s issue clearly
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falls within the broad 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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