United States v. Vazquez , 383 F. App'x 256 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4469
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HIGINIO PADRON VAZQUEZ, a/k/a Paco,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:00-cr-00212-FDW-9)
Submitted: May 20, 2010 Decided: June 11, 2010
Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Aaron E. Michel, Charlotte, North Carolina, for Appellant.
Edward R. Ryan, Acting United States Attorney, Charlotte, North
Carolina; Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Higinio Padron Vazquez pled guilty to conspiracy to
possess with intent to distribute marijuana and cocaine, in
violation of 18 U.S.C. §§ 841(a)(1), 846 (2006). He was
sentenced to 132 months’ imprisonment and a four-year term of
supervised release. On appeal, Vazquez challenges the district
court’s imposition of a four-level enhancement under U.S.
Sentencing Guidelines Manual § 3B1.1(a) (2007), for a leadership
role in the offense. He argues that the enhancement and the
denial of a safety valve reduction were error, constituted a
breach of the plea agreement, and were further based on other
misconduct by the prosecutor and ineffective assistance of
defense counsel. For the reasons that follow, we affirm
Vazquez’s conviction and sentence.
The record discloses that Vazquez waived his right to
appeal his conviction and sentence except for claims of
prosecutorial misconduct and ineffective assistance of counsel.
Whether a defendant effectively waived his right to appeal
pursuant to a plea bargain is an issue of law that is reviewed
de novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005). Where the government seeks to enforce an appeal waiver
and the appellant does not contend that the government is in
breach of its plea agreement, a waiver will be enforced if the
record shows the waiver is valid and the challenged issue falls
2
within the scope of the waiver. Id. Conversely, this court
will not enforce an otherwise valid waiver where the Government
has breached the plea agreement containing the waiver. See
United States v. Cohen, 459 F.3d 490, 495 (4th Cir. 2006).
Here, Vazquez argues that he was misled by his defense
counsel and the prosecutor into believing that the factual basis
to which he and the Government stipulated in the plea agreement
“settled all material factual disputes.” He claims his
detrimental reliance on these representations renders his plea
unknowing and involuntary. He contends the Government was
duplicitous in gaining a waiver of his trial rights in a case it
could probably not win at trial and that it used a “bait-and-
switch” tactic. He further maintains that the testimony
received at sentencing was hearsay and not sufficiently
reliable.
We find Vazquez knowingly and voluntarily waived in
his plea agreement his right to appeal his conviction and
sentence, which includes the four-level role enhancement and the
denial of application of the safety valve provision. See United
States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995)
(holding that an appeal waiver is valid if it is “the result of
a knowing and intelligent decision to forgo the right to
appeal.”) (internal quotation marks and citations omitted); see
also United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005)
3
(noting that an appeal waiver is generally valid and enforceable
if defendant fully questioned during plea colloquy). Vazquez’s
contention that the Government breached the plea agreement is
unsupported by the record. In the plea agreement, the
Government stipulated to a base offense level and the amount of
drugs attributable to Vazquez. It did not, however, agree not
to seek an offense-level enhancement. In fact, the Government
“reserve[d] the right to inform the court and the probation
officers of all facts pertinent to the sentencing process,
including all relevant information concerning the offenses
committed, whether charged or not.” Because the agreement was
knowingly and voluntarily entered, the appeal waiver bars the
appeal of Vazquez’s direct claim that the trial court erred in
imposing the four-level leadership enhancement and in denying
application of the safety valve provision.
Vazquez’s claims of prosecutorial misconduct and
ineffective assistance of counsel are not barred by the waiver.
Unless an attorney’s ineffectiveness is apparent on the face of
the record, ineffective assistance claims are not generally
addressed on direct appeal. United States v. James, 337 F.3d
389, 391 (4th Cir. 2003). To show ineffective assistance of
counsel, Vazquez must show that counsel’s performance fell below
an objective standard of reasonableness under “prevailing
professional norms” and was prejudicial. Strickland v.
4
Washington, 466 U.S. 668, 687-88, 692 (1984). The prejudice
prong is satisfied if Vazquez can demonstrate that “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Id. at 694. Within the guilty plea context, a defendant meets
the prejudice prong by showing there is a reasonable probability
that absent counsel’s error he would not have pled guilty and
would have insisted on going to trial. Hill v. Lockhart, 474
U.S. 52, 59 (1985). We reject Vazquez’s claims of prosecutorial
misconduct and find that ineffective assistance of counsel does
not appear on the face of the record.
Accordingly, we affirm Vazquez’s conviction and
sentence. 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.
AFFIRMED
5