United States v. Alfredo Contador-Cruz , 714 F. App'x 215 ( 2017 )


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  •                                     UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 17-4107
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    ALFREDO CONTADOR-CRUZ, a/k/a Emilio Camarena-Gusman, a/k/a Rogelio
    El Gabacho,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western District of North Carolina,
    at Statesville. Richard L. Voorhees, Senior District Judge. (5:15-cr-00071-RLV-DCK-1)
    Submitted: September 7, 2017                                Decided: November 27, 2017
    Before KEENAN and HARRIS, Circuit Judges, and HAMILTON, Senior Circuit Judge.
    Dismissed in part, affirmed in part by unpublished per curiam opinion.
    David Alan Brown, Sr., Rock Hill, South Carolina, for Appellant. Anthony Joseph
    Enright, Assistant United States Attorney, Charlotte, North Carolina; Amy Elizabeth Ray,
    Assistant United States Attorney, Asheville, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Alfredo Contador-Cruz pleaded guilty to conspiracy to produce and transfer
    fraudulent identification documents, in violation of 
    18 U.S.C. § 1028
    (a)(1), (a)(2), (f)
    (2012); production of fraudulent identification documents, in violation of 
    18 U.S.C. § 1028
    (a)(1); and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1)
    (2012).   The district court sentenced Contador-Cruz to a total of 39 months of
    imprisonment and he now appeals. On appeal, Contador-Cruz argues that: (1) the district
    court erred in accepting his guilty plea to aggravated identity theft because there was not
    a sufficient factual basis for the offense; (2) his guilty plea to aggravated identity theft
    was not knowing and voluntary; (3) the sentence is procedurally unreasonable because
    the court failed to sufficiently explain why the sentence was not at the low end of the
    Guidelines range; and (4) counsel was ineffective in advising him to plead guilty to
    aggravated identity theft when there was no factual basis for the plea. The Government
    has moved to dismiss the appeal as barred by Contador-Cruz’s waiver of his appellate
    rights contained in the plea agreement. For the reasons that follow, we dismiss the appeal
    and affirm the judgment of the district court.
    Pursuant to a plea agreement, a defendant may waive his appellate rights under 
    18 U.S.C. § 3742
     (2012). United States v. Archie, 
    771 F.3d 217
    , 221 (4th Cir. 2014). A
    waiver will preclude appeal of a specific issue if the waiver is valid and the issue is
    within the scope of the waiver. 
    Id.
     Whether a defendant validly waived his right to
    appeal is a question of law that we review de novo. United States v. Marin, 
    961 F.2d 493
    ,
    496 (4th Cir. 1992).
    2
    “The validity of an appeal waiver depends on whether the defendant knowingly
    and intelligently agreed to waive the right to appeal.” United States v. Blick, 
    408 F.3d 162
    , 169 (4th Cir. 2005). To determine whether a waiver is knowing and intelligent, we
    examine “the totality of the circumstances, including the experience and conduct of the
    accused, as well as the accused’s educational background and familiarity with the terms
    of the plea agreement.” United States v. General, 
    278 F.3d 389
    , 400 (4th Cir. 2002)
    (internal quotation marks omitted). Generally, if the district court fully questions a
    defendant regarding the waiver of his right to appeal during the Fed. R. Crim. P. 11
    colloquy, the waiver is both valid and enforceable. United States v. Johnson, 
    410 F.3d 137
    , 151 (4th Cir. 2005).
    We have thoroughly reviewed the record and conclude that Contador-Cruz’s guilty
    plea and appellate waiver were knowing, voluntary, and intelligent.         In addition,
    Contador-Cruz’s challenge to the procedural reasonableness of his sentence falls squarely
    within the scope of that waiver. Contador-Cruz contends, however, that the appellate
    waiver does not foreclose his claim that the district court erred in accepting his guilty
    plea to the aggravated identity theft charge without a sufficient factual basis.
    Contador-Cruz is correct that there has been “some uncertainty in this circuit about
    whether a defendant may waive the Rule 11 requirement that a district court determine
    whether there is a sufficient factual basis for the defendant’s plea.” United States v.
    Baker, 571 F. App’x 258, 259 (4th Cir. 2014) (No. 13-4629) (noting conflicting
    unpublished circuit precedent). Because we conclude that Contador-Cruz has failed to
    demonstrate reversible error, we address this claim on the merits.
    3
    Rule 11(b)(3) requires a district court to determine whether there is a factual basis
    for the plea before entering judgment on a guilty plea. United States v. Ketchum, 
    550 F.3d 363
    , 366 (4th Cir. 2008). “A stipulated recitation of facts alone is sufficient to
    support a plea.” 
    Id. at 367
     (internal quotation marks and citation omitted). Here, because
    Contador-Cruz did not move to withdraw his guilty plea, any error in the Rule 11
    proceedings is reviewed for plain error. See United States v. Williams, 
    811 F.3d 621
    , 622
    (4th Cir. 2016). To demonstrate plain error, Contador-Cruz must show (1) error, (2) that
    was plain, and (3) that affected his substantial rights. United States v. Martinez, 
    277 F.3d 517
    , 524 (4th Cir. 2002). Moreover, we have discretion whether to recognize a
    plain error and will not exercise that discretion unless Contador-Cruz demonstrates that
    “the ‘error seriously affects the fairness, integrity[,] or public reputation of judicial
    proceedings.’” 
    Id.
     (quoting United States v. Olano, 
    507 U.S. 725
    , 732 (1993)). Our
    review of the record leads us to conclude that Contador-Cruz has failed to demonstrate
    that the district court plainly erred in finding that a sufficient factual basis existed for his
    guilty plea to aggravated identity theft.
    Finally, Contador-Cruz’s appellate waiver does not include claims of ineffective
    assistance of counsel. To prove a claim of ineffective assistance of counsel, a defendant
    must show (1) “that counsel’s performance was deficient,” and (2) “that the deficient
    performance prejudiced the defense.”        Strickland v. Washington, 
    466 U.S. 668
    , 687
    (1984). Under the second prong of the test in the context of a conviction following a
    guilty plea, a defendant can show prejudice only by demonstrating “a reasonable
    4
    probability that, but for counsel’s errors, he would not have pleaded guilty and would
    have insisted on going to trial.” Hill v. Lockhart, 
    474 U.S. 52
    , 59 (1985).
    However, we will address a claim of ineffective assistance on direct appeal only if
    the lawyer’s ineffectiveness conclusively appears on the record. United States v. Faulls,
    
    821 F.3d 502
    , 507-08 (4th Cir. 2016).          Here, there is no conclusive evidence of
    ineffective assistance on the face of the record and we conclude that Contador-Cruz’s
    claims should not be addressed at this time.
    Accordingly, we grant the Government’s motion to dismiss the appeal in part and
    affirm in part. 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 in
    the decisional process.
    DISMISSED IN PART;
    AFFIRMED IN PART
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