United States v. Miguel Quinones , 707 F. App'x 184 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4253
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MIGUEL QUINONES, a/k/a Eric Hernandez,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia,
at Charleston. Joseph R. Goodwin, District Judge. (2:16-cr-00116-1)
Submitted: December 21, 2017 Decided: December 27, 2017
Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Dismissed in part and affirmed in part by unpublished per curiam opinion.
Diana Stavroulakis, Weirton, West Virginia, for Appellant. Carol A. Casto, United States
Attorney, Jennifer Rada Herrald, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Miguel Quinones appeals the 70-month sentence imposed after his guilty plea to
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (2012).
The Government has moved to dismiss the appeal as barred by the appeal waiver in
Quinones’s plea agreement. We dismiss in part and affirm in part.
To be constitutionally valid, a plea must “be the voluntary expression of [a
defendant’s] own choice.” Brady v. United States, 397 U.S. 742, 748 (1970). A
defendant must enter a plea “knowingly and intelligently, with sufficient awareness of the
relevant circumstances and likely consequences.” United States v. Moussaoui, 591 F.3d
263, 278 (4th Cir. 2010) (internal quotation marks omitted). When determining whether
a defendant entered a plea knowingly and voluntarily, we “look to the totality of the
circumstances surrounding it, granting the defendant’s solemn declaration of guilt a
presumption of truthfulness.” Id. (alterations and internal quotation marks omitted).
In this case, the district court reviewed the plea agreement with Quinones, and
Quinones stated, under oath, that he understood the agreement and agreed to its
provisions. The district court also reviewed the rights Quinones gave up by pleading
guilty and the consequences of his guilty plea. Quinones stated that the Government’s
factual basis supporting the plea was correct, that he pled guilty because he was actually
guilty, and that he did so without threats or coercion. We therefore conclude, based on
the totality of the circumstances, that Quinones’s plea was knowing and voluntary.
Having determined that Quinones entered into his plea knowingly and voluntarily,
see United States v. Attar, 38 F.3d 727, 732-33 & n.2 (4th Cir 1994), we review de novo
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the validity of Quinones’s appeal waiver. United States v. Copeland, 707 F.3d 522, 528,
530 (4th Cir. 2013). A defendant’s waiver is valid if he agreed to it “knowingly and
intelligently.” United States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010). An appeal
waiver generally is enforceable “if the record establishes that the waiver is valid and that
the issue being appealed is within the scope of the waiver.” United States v. Thornsbury,
670 F.3d 532, 537 (4th Cir. 2012) (internal quotation marks omitted). Appeal waivers,
however, do not preclude an appeal as to any issue that cannot be waived by law, such as
a claim that the sentence exceeds the statutory maximum, that race or other
constitutionally impermissible factors influenced the sentence, or that the defendant was
denied the right to counsel. See Copeland, 707 F.3d at 530. Upon review of the plea
agreement and the transcript of the Fed. R. Crim. P. 11 hearing, we conclude that
Quinones knowingly and voluntarily waived his right to appeal, and that the issue of
whether the district court judge gave a timely opportunity for allocution under Fed. R.
Crim. P. 32(i)(4)(A)(ii) falls within the scope of Quinones’s waiver of appellate rights.
See United States v. Arevalo, 628 F.3d 93, 100 (2d Cir. 2010) (holding that valid appeal
waiver bars review of Rule 32 error; collecting cases, and noting contrary authority). We
therefore grant the Government’s motion to dismiss in part and dismiss Quinones’s
appeal of his sentence based upon his contention that he was denied the right to allocute.
Quinones’s claim of ineffective assistance of counsel, however, does not fall
within the scope of his appeal waiver. See Copeland, 707 F.3d at 530. Quinones argues
that sentencing counsel were ineffective because they failed to object to the district
court’s failure to provide an opportunity for Quinones to allocute prior to its initial
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statement of reasons supporting its intended sentence. To prevail on his ineffective
assistance claims, Quinones “must show that counsel’s performance was deficient” and
“that the deficient performance prejudiced the defense.” Strickland v. Washington, 466
U.S. 668, 687 (1984); see Hill v. Lockhart, 474 U.S. 52, 59 (1985) (discussing prejudice
in context of guilty plea). This court does not consider ineffective assistance claims on
direct appeal “[u]nless an attorney’s ineffectiveness conclusively appears on the face of
the record.” United States v. Faulls, 821 F.3d 502, 507 (4th Cir. 2016). We conclude
that counsel’s ineffectiveness does not conclusively appear on the face of the record. The
court gave Quinones the opportunity to allocute, considered Quinones’s statement,
discussed the impact of his statement, further discussed its reasoning, and then
pronounced the final sentence. It is clear from the record that no prejudice resulted.
Accordingly, we grant in part the Government’s motion to dismiss the appeal and
dismiss the appeal as to the Rule 32 sentencing issue. We also deny in part the
Government’s motion and affirm the district court’s judgment as to the ineffective
assistance of counsel issue. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this court and argument
would not aid the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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