United States v. Pineiro ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4737
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES ALEXANDER PINEIRO,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge. (CR-
04-449)
Submitted: March 30, 2006 Decided: April 5, 2006
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Peter D. Ward, LAW OFFICE OF PETER D. WARD, Baltimore, Maryland,
for Appellant. Michael Joseph Leotta, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Charles Alexander Pineiro appeals the district court's
judgment sentencing him to twenty-four months’ imprisonment
following his guilty plea to two counts of fraud in connection with
access devices, in violation of 18 U.S.C. § 1029 (2000). His
attorney has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), raising one issue but stating that, in his view,
there are no meritorious issues for appeal. Pineiro has been
informed of his right to file a pro se supplemental brief but has
not done so. The United States argues that this court must enforce
the waiver of appellate rights provision in Pineiro’s plea
agreement. We agree.
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.
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, Pineiro’s waiver was clearly knowing and voluntary.
The details of the waiver were clearly set forth in the written
- 2 -
plea agreement, which Pineiro had read, discussed with his
attorney, and understood. He was twenty-five, 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 Pineiro stated that he
understood the waiver.
In his plea agreement, Pineiro reserved the right to
appeal a departure from his guideline range. His sentence was
within the guidelines range. On appeal, Pineiro’s counsel raises
the issue of whether Pineiro is entitled credit for time spent in
state custody , an issue within the scope of the appellate waiver.
Accordingly, we dismiss the appeal based on the waiver provision in
the plea agreement.
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 decision process.
DISMISSED
- 3 -