United States v. Victor Mendoza-Montiel

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4591
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICTOR MENDOZA-MONTIEL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:09-cr-00126-f-4)
Submitted: September 25, 2012 Decided: October 12, 2012
Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.
Affirmed in part, dismissed in part by unpublished per curiam
opinion.
Dhamian A. Blue, BLUE STEPHENS & FELLERS LLP, Raleigh, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Victor Mendoza-Montiel pled guilty pursuant to a plea
agreement to conspiracy to possess with intent to distribute
five kilograms or more of cocaine, 21 U.S.C. § 846 (2006), and
possession of a firearm during and in relation to a drug
trafficking crime, 18 U.S.C. § 924(c)(1), (2) (2006). Counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), asserting there are no appealable issues. Mendoza-
Montiel was given the opportunity to file a pro se supplemental
brief, but did not do so. The Government did not file a brief,
but did file a motion to dismiss the appeal based upon Mendoza-
Montiel’s agreement to waive his right to appeal his sentence.
We affirm in part and dismiss in part.
Mendoza-Montiel entered into a 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 applicable advisory Guideline range that
is established at sentencing[.]
A criminal defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v. Poindexter,
492 F.3d 263, 270 (4th Cir. 2007). Generally, if the district
court fully questions a defendant regarding the waiver of his
right to appeal during a plea colloquy performed in accordance
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with Rule 11, the waiver is both valid and enforceable. United
States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). Whether a
defendant validly waived his right to appeal is a question of
law this Court reviews de novo. United States v. Blick, 408
F.3d 162, 168 (4th Cir. 2005). Where the Government seeks to
enforce an appeal waiver and there is no claim that the
Government breached its obligations under the plea agreement,
this Court will enforce the waiver if the record establishes
that (1) the defendant knowingly and intelligently agreed to
waive the right to appeal, and (2) the issue being appealed is
within the scope of the waiver. Id. at 168 & n.5.
Upon our review of the record, we conclude that
Mendoza-Montiel voluntarily and knowingly agreed to waive his
right to appeal his sentence, which was confirmed during the
Rule 11 hearing. We further conclude that there are no
meritorious issues concerning the sentence that fall outside the
scope of the appeal waiver. Because the Government seeks to
enforce the waiver, we dismiss that part of the appeal from the
sentence.
Because Mendoza-Montiel did not waive his right to
appeal his convictions, we have reviewed the record and the Rule
11 proceeding and find no meritorious issues for appeal
concerning his two convictions. Accordingly, we affirm the
convictions.
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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal concerning the convictions. Accordingly, we grant the
Government’s motion to dismiss and dismiss in part and affirm in
part. We deny counsel’s motion to withdraw at this time. This
court requires that counsel inform Mendoza-Montiel in writing of
his right to petition the Supreme Court of the United States for
further review. If he requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may renew his motion for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Mendoza-Montiel. 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 IN PART;
DISMISSED IN PART
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