United States v. Gaspar-Lopez ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4529
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JUAN CARLOS GASPAR-LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:06-cr-00009-RGD)
Submitted: December 21, 2006 Decided: December 29, 2006
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Paul A. Driscoll, PENDER & COWARD, P.C., Virginia Beach, Virginia
for Appellant. Charles Philip Rosenberg, United States Attorney,
Alexandria, Virginia, Joseph Evan DePadilla, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juan Carlos Gaspar-Lopez pled guilty to aggravated
identity theft, 18 U.S.C.A. § 1028A (West Supp. 2006), and received
a mandatory sentence of two years imprisonment. Under the terms of
his plea agreement, Gaspar-Lopez waived his right to appeal his
conviction and any sentence within the statutory maximum of two
years imprisonment. Gaspar-Lopez’s attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), questioning
whether Gaspar-Lopez knowingly waived his right to appeal and
whether the district court erred in accepting the guilty plea, but
stating that, in his view, there are no meritorious issues for
appeal. Gaspar-Lopez has been informed of his right to file a pro
se supplemental brief, but has not filed a brief. We affirm.
This Court reviews the validity of a waiver de novo,
United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000), and will
uphold a waiver of appellate rights if the waiver is valid and the
issue being appealed is covered by the waiver. United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005). A waiver is valid if the
defendant’s agreement to the waiver was knowing and voluntary.
United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).
Generally, if a district court fully questions a defendant
regarding his waiver of appellate rights during the Fed. R. Crim.
P. 11 colloquy, the waiver is valid. United States v. Wessells,
936 F.2d 165, 167-68 (4th Cir. 1991). Here, the district court
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questioned Gaspar-Lopez about the waiver of his right to appeal his
sentence, but did not address the waiver of his right to appeal his
conviction. Thus, we conclude that the waiver is valid with
respect to Gaspar-Lopez’s attempt to appeal his sentence, but not
with respect to his appeal of his conviction.
Nonetheless, we are convinced that the guilty plea was
valid. The record reveals that the district court fully complied
with the requirements of Fed. R. Crim. P. 11 before accepting
Gaspar-Lopez’s guilty plea. We conclude that that both Gaspar-
Lopez’s guilty plea and waiver of the right to appeal his sentence
were knowing and voluntary.
Pursuant to Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
the district court’s judgment. This court requires that counsel
inform his client, in writing of his right to petition the Supreme
Court of the United States for further review. If the client
requests that such 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 representation. Counsel’s motion
must state that a copy thereof was served on the client. 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
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