United States v. Zamarripa , 280 F. App'x 311 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4509
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS HUMBERTO ZAMARRIPA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Terrence W. Boyle,
District Judge. (5:06-cr-00220-BO)
Submitted: May 20, 2008 Decided: June 5, 2008
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Sue Genrich Berry, BOWEN & BERRY, PLLC, Wilmington, North Carolina,
for Appellant. Anne Margaret Hayes, Jennifer P. May-Parker,
Stephen Aubrey West, Assistant United States Attorneys, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In accordance with a written plea agreement, Carlos
Humberto Zamarripa pled guilty to conspiracy to distribute more
than five kilograms of cocaine, in violation of 21 U.S.C. § 846(2000), and was sentenced to 400 months in prison. Zamarripa
appealed. His attorney filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal but contending that the sentence is
procedurally unreasonable. Zamarrippa filed a pro se supplemental
brief claiming prosecutorial misconduct, ineffective assistance of
counsel, and various sentencing errors.
The United States moved to dismiss the appeal based on
Zamarripa’s waiver of his appellate rights. Zamarripa opposed the
motion. We deny the motion insofar as it pertains to Zamarripa’s
claims of prosecutorial misconduct and ineffective assistance of
counsel. We find that his claim of prosecutorial misconduct has no
merit. Although the waiver permits Zamarripa to raise ineffective
assistance on direct appeal, we conclude that ineffective
assistance does not appear on the face of the record. We grant the
motion to dismiss the appeal with respect to the sentencing issues,
which lie within the scope of the appellate waiver. Finally, after
a thorough review of the entire record, we have found no
meritorious issues for appeal. Accordingly, we affirm in part and
dismiss in part.
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I
Zamarripa signed a written plea agreement in which he
agreed:
to waive knowingly and expressly all rights, conferred by
18 U.S.C. § 3742, to appeal whatever sentence is imposed,
including any issues that relate to the establishment of
the advisory Guideline range, reserving only the right to
appeal from a sentence in excess of the advisory
Guideline range, and further to waive all rights to
contest the conviction or sentence in any post-conviction
proceeding, including one pursuant to 28 U.S.C. § 2255,
excepting an appeal or motion based upon grounds of
ineffective assistance of counsel or prosecutorial
misconduct not known to the Defendant at the time of the
Defendant’s guilty plea.
The plea agreement set forth the maximum sentence that Zamarripa
faced and made clear that the sentencing guidelines applied.
At arraignment, the court summarized the plea agreement,
including the waiver provision. Zamarripa informed the court that
the summary was correct. The court ascertained that Zamarripa
understood the charge against him, the applicable penalty, and the
rights he waived by pleading guilty. Zamarripa represented to the
court that he and his attorney had thoroughly discussed his case
and that he had voluntarily entered into the plea agreement.
Zamarripa’s probation officer prepared a presentence
report. At sentencing, the district court overruled Zamarripa’s
objection to a recommended enhancement for possession of a firearm.
Zamarripa’s total offense level was 41, his criminal history
category was I, and his advisory guideline range was 324-405 months
in prison. The maximum term of imprisonment to which he was
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subject was life in prison. See 21 U.S.C. § 841(b)(1)(A) (2000).
The district court sentenced Zamarripa to 400 months in prison.
II
We begin with the motion to dismiss based on the
appellate waiver. In United States v. Blick, 408 F.3d 162 (4th
Cir. 2005), we considered whether a waiver-of-appellate-rights
provision in a plea agreement was enforceable after the Supreme
Court’s decision in United States v. Booker, 543 U.S. 220 (2005).
We employed a two-part analysis to decide the issue. First, we
considered whether the waiver was knowing and voluntary. Blick,
408 F.3d at 169. After deciding that it was, we considered whether
the issues raised on appeal were within the scope of that motion.
Because they were, we dismissed the appeal. Id. at 169-73.
We review de novo the validity of a waiver. United
States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). Whether a
waiver of the right to appeal 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.
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Here, Zamarripa’s waiver was knowing and voluntary. When
he entered his plea, he was twenty-six years old and had a college
degree. The waiver-of-appellate-rights provision was set forth in
a separate paragraph of the plea agreement and was specifically
addressed at arraignment.
Zamarripa’s plea agreement permits him to raise claims of
prosecutorial misconduct and ineffective assistance of counsel. We
deny the motion to dismiss insofar as it relates to those claims.
With respect to prosecutorial misconduct, Zamarripa contends that
the Government breached the plea agreement when it failed at
sentencing to make a motion pursuant to U.S. Sentencing Guidelines
Manual § 5K1.1 (2006). This claim lacks merit because the plea
agreement contained no such promise by the Government. Second,
although Zamarripa did not waive his right to raise ineffective
assistance on appeal, we will not address the claim because
ineffectiveness does not conclusively appear from the face of the
record. See United States v. Baldovinos, 434 F.3d 233, 239 (4th
Cir.), cert. denied, 546 U.S. 1203 (2006).
The remainder of the claims raised in the briefs relate
to sentencing. The appellate waiver permits an appeal of the
sentence only if it is “in excess of the applicable advisory
Guideline range.” Because Zamarripa’s 400-month sentence falls
within the properly calculated advisory guideline range of 324-405
months, appellate review of his sentence is foreclosed. We
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therefore grant the motion to dismiss insofar as it relates to
sentencing issues.
In accordance with Anders, we have reviewed the entire record
for meritorious issues and have found none. This court requires
counsel to inform her client, in writing, of his right to petition
the Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes that
such a petition would be frivolous, counsel may then move in this
court to withdraw from representation. Counsel’s motion must state
that a copy of the motion was served on the client. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before us and argument would
not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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