United States v. Santos ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4863
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TEMESTOCLES A. SANTOS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(CR-02-530-MJG)
Submitted: June 24, 2005 Decided: July 19, 2005
Before TRAXLER, KING, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Jeffrey E. Risberg, Assistant
Federal Public Defender, Baltimore, Maryland, for Appellant.
Thomas M. DiBiagio, United States Attorney, Angela R. White,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Temestocles A. Santos, Jr., pleaded guilty to one count
of possession with intent to distribute fifty grams or more of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (2000), and
was sentenced to seventy months in prison. His attorney has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
raising one issue but stating that, in his opinion, there are no
meritorious issues for appeal. Santos was advised of his right to
file a pro se informal brief, but did not file such a brief. The
United States argues that this court must enforce the waiver-of-
appellate rights provision in Santos’ plea agreement. We agree and
dismiss the appeal.
I
Santos signed a written plea agreement containing the
following provision:
[You] knowingly and expressly waive all rights conferred
by 18 U.S.C. § 3742 to appeal whatever sentence is
imposed, including any issues that relate to the
establishment of the guideline range, reserving only the
right to appeal from an upward or downward departure from
the guideline range that is established at sentencing.
The plea agreement set forth the minimum and maximum sentence that
Santos faced and made clear that the sentencing guidelines applied
and that the court would apply a sentence within those guidelines
unless there was a basis for departure. Santos admitted that he was
guilty of the offense charged and that the Government could prove
his guilt if the case proceeded to trial.
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Santos and his attorney signed the agreement. By
signing, Santos acknowledged that he had read the agreement, had
reviewed it with his lawyer, understood it, and voluntarily agreed
to it.
At his Fed. R. Crim. P. 11 hearing, the district court
ascertained that Santos was thirty-three years old and a high
school graduate. Santos was not under the influence of drugs or
alcohol. The court identified the rights that Santos waived by
going to trial, and specifically mentioned the right to appeal.
The court stated, “You’d have the right to an appeal. You’d still
have counsel. And on appeal, the appeals court could say well,
there was an error in the trial and send it back for a new trial or
find you not guilty. Do you understand you’re giving up all those
rights?” Santos stated that he did. The district court concluded
that the plea was knowingly and voluntarily entered and accepted
Santos’ guilty plea.
At sentencing, the district court accepted the guideline
calculations recommended in the presentence report and stipulated
to in the plea agreement, for an offense level of 27 and a criminal
history category of 1, with a resulting guideline range of 70-87
months. The court sentenced Santos to seventy months in prison.
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II
In the Anders brief, counsel contends that the Government
should have made a motion for downward departure based upon
substantial assistance. However, counsel concedes that the plea
agreement stipulated that whether to make such a motion lay within
the exclusive discretion of the Government. Further, there is
nothing to suggest that the failure to make a motion resulted from
bad faith or unconstitutional motive. The Government replies that
Santos waived his right to appeal.
This case is governed by our recent decision in United
States v. Blick, 408 F.3d 162 (4th Cir. 2005). The issue in Blick
was whether a waiver-of-appellate rights provision in a plea
agreement was enforceable after the Supreme Court’s decision in
United States v. Booker, 125 S. Ct. 738 (2005). We employed a two-
part analysis to decide the issue. First, we considered whether
the waiver was knowing and voluntary. Having decided that it was,
we asked whether the issues raised on appeal were within the scope
of that motion. They were, and we held that the appeal was subject
to dismissal. Blick 408 F. 3d at 164.
This Court reviews de novo the validity of a waiver of
the right to appeal. United States v. Marin, 961 F.2d 493, 496
(4th Cir. 1992). Whether such a waiver is knowing and intelligent
depends upon the facts and circumstances surrounding its making,
including the defendant’s background, experience, and conduct.
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United States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992). A
waiver is ineffective if the district court fails to question the
defendant about it, United States v. Wessells, 936 F.2d 165, 167-68
(4th Cir. 1991), unless other evidence in the record shows that the
waiver was informed and voluntary. Davis, 954 F.2d at 186.
Here, Santos’ waiver was clearly knowing and voluntary.
The details of the waiver were clearly set forth in the written
plea agreement, which Santos had read, discussed with his attorney,
and understood. He was thirty-three, a high school graduate, and
not under the influence of drugs or alcohol when he entered his
guilty plea. The district judge questioned him about the waiver of
his appellate rights, and Santos stated that he understood the
waiver.
In his plea agreement, Santos reserved the right to
appeal an upward or downward departure from his guideline range.
On appeal, he attempts to challenge the Government’s failure to
move for a downward departure based upon substantial assistance.
Because there was no departure, the issue he seeks to raise lies
within the scope of the appellate waiver and, under Blick, the
matter is not reviewable on appeal.
As required by Anders, we have reviewed the entire record
on appeal and have found no meritorious issues for appeal. We
therefore dismiss the appeal. The court requires that counsel
inform his client, in writing, of his right to petition the Supreme
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Court of the United States for further review. If the client
requests that 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.
DISMISSED
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