United States v. Hernandez ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4570
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MANUEL HERNANDEZ, a/k/a Lamberto Rabollar
Salgado, a/k/a Antonio Correa,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CR-
01-533-PJM)
Submitted: June 30, 2005 Decided: August 2, 2005
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Timothy S. Mitchell, LAW OFFICES OF TIMOTHY S. MITCHELL, Greenbelt,
Maryland, for Appellant. Thomas M. DiBiagio, United States
Attorney, Deborah A. Johnston, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Manuel Hernandez seeks to appeal his conviction and
sentence to 255 months in prison and five years of supervised
release following his guilty plea pursuant to a written plea
agreement to conspiracy to distribute and possess with intent to
distribute five or more kilograms of cocaine in violation of 21
U.S.C. § 846 (2000). He seeks to raise a claim challenging his
sentence on the ground that it violated Apprendi v. New Jersey, 530
U.S. 466 (2000); Blakely v. Washington, 124 S. Ct. 2531 (2005); and
United States v. Booker, 125 S. Ct. 738 (2005). Because we find
Hernandez is precluded from raising this claim by his valid appeal
waiver, we dismiss the appeal.
“‘Plea bargains rest on contractual principles, and each
party should receive the benefit of its bargain.’” United
States v. Blick, 408 F.3d 162, 173 (4th Cir. 2005) (quoting United
States v. Ringling, 988 F.2d 504, 506 (4th Cir. 1993)). Where the
United States seeks to enforce an appeal waiver, and there is no
claim that the United States breached its obligations under the
plea agreement, this court will enforce the waiver to preclude a
defendant from appealing a specific issue if the record establishes
he knowingly and intelligently agreed to waive the right to appeal,
and the issue being appealed is within the scope of the waiver.
Id. at 168-69. On appeal, Hernandez does not challenge his waiver
as unknowing or involuntary but contends the issue he seeks to
- 2 -
appeal is not within the scope of the waiver. Because Hernandez
expressly agreed to be sentenced “pursuant to the Sentencing Reform
Act of 1984," and unqualifiedly waived his right to appeal
“whatever sentence is imposed, including any issues that relate to
the establishment of the guideline range,” we find his argument
squarely foreclosed by our recent decision in United States v.
Blick, 408 F.3d 162, 171-72 (4th Cir. 2005).
Accordingly, we dismiss this 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
- 3 -