US v. Arroyo-Duarte

Filing 920100226

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4663

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EVELIO ARROYO-DUARTE, Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Samuel G. Wilson, District Judge. (5:06-cr-00050-sgw)

Submitted:

January 22, 2010

Decided:

February 26, 2010

Before NIEMEYER and Senior Circuit Judge.

MICHAEL,

Circuit

Judges,

and

HAMILTON,

Affirmed in part; dismissed in part by unpublished per curiam opinion.

Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY, Charlottesville, Virginia, for Appellant. Julia C. Dudley, United States Attorney, Donald R. Wolthuis, Assistant United States Attorney, Brandon Crook, Third Year Practice Law Student, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Evelio Arroyo-Duarte pled guilty to conspiracy to

distribute and possess with intent to distribute more than fifty grams of methamphetamine in violation and of a 21 measurable U.S.C. quantity § 846 of

amphetamine,

(2006),

distribution or possession with intent to distribute more than fifty grams of amphetamine, (West in violation 2009), of 21 U.S.C.A. or

§ 841(a)(1),

(b)(1)(C)

Supp.

distribution

possession with intent to distribute more than fifty grams of methamphetamine, (b)(1)(B) (West in Supp. violation 2009), of 21 U.S.C.A. or § 841(a)(1), with

distribution

possession

intent to distribute amphetamine, in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(C) (West Supp. 2009), and possession of a firearm with a removed serial number, in violation of 18 U.S.C. § 922(k) (2006). The district court sentenced Arroyo-Duarte to

135 months= incarceration for the first four counts and 60 months for the fifth count, all to run concurrently. On court erred to appeal, by 18 Arroyo-Duarte his motion argues for a that the district departure Sentencing

denying U.S.C.

downward U.S.

pursuant

§ 3553(f)

(2006)

and

Guidelines Manual § 5C1.2.1 (2008).

The Government has moved to

dismiss the appeal on the ground that Arroyo-Duarte knowingly and intelligently waived his right to appeal his sentence

imposed under the Sentencing Guidelines. 2

A defendant may, in a valid plea agreement, waive the right to appeal. Cir. 1990). United States v. Wiggins, 905 F.2d 51, 53 (4th

Any such waiver must be made by a "`knowing and United

intelligent decision to forgo the right to appeal.'"

States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995) (quoting United States v. Attar, 38 F.3d 727, 731 (4th Cir. 1994)). Whether a defendant has effectively waived his right to United

appeal is an issue of law this court reviews de novo. States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). An knowing and appellate voluntary waiver if is generally district considered court

to

be

the

specifically

questioned the defendant concerning the waiver provision during the Rule 11 colloquy and the record indicates that the defendant understood the full significance of the waiver and was not

denied effective assistance of counsel.

See United States v. Our review of the

Johnson, 410 F.3d 137, 151 (4th Cir. 2005).

record leads us to conclude that Arroyo-Duarte knowingly and voluntarily entered into the plea agreement and thus his

appellate waiver is valid and enforceable. The plea agreement provided that Arroyo-Duarte waived his right to a jury trial and any claims of ineffective

assistance of counsel known by him and not raised at the time of sentencing. Further, the agreement stated:

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I agree that after my full and fair sentencing hearing, I will not then appeal any sentencing guidelines factors or the Court's application of the sentencing guidelines factors to the facts of my case. I am knowingly and voluntarily waiving any right to appeal sentencing guidelines factors, and am voluntarily willing to rely on the Court in sentencing me under the Sentencing Guidelines. Arroyo-Duarte argues on appeal that the district court erred by denying his motion for a downward departure pursuant to the safety valve provisions of 18 U.S.C. § 3553(f) § 5C1.2 and USSG

§ 5C1.2.

Arroyo-Duarte

argues

that

USSG

provides

eligibility to a defendant who, among other factors, was not an "organizer, leader, manager, or supervisor of others" in a

criminal offense involving five or more participants, and his offense involved fewer than five. To the extent that

Arroyo-Duarte contests the district court's application of USSG § 5C1.2, his waiver forecloses his argument on appeal. To the extent that this argument is a challenge to the application of a statute and not a Guidelines determination, the district court did not err in denying the motion for a downward departure. statutory The legislative limitation on the applicability of mandatory minimums in certain cases, generally

referred to as the "safety valve" provision, directs district courts in limited circumstances to impose a sentence pursuant to the Sentencing Guidelines regardless of any statutory mandatory minimum sentence. See 18 U.S.C. § 3553(f).

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This

subsection

can

only

apply

where,

among

other

factors, "the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing

criminal enterprise." term "organizer, any

§ 3553(f)(4). manager, who or

Under this section, the supervisor an USSG of others" for an

leader,

includes aggravated (n.5).

defendant under

received § 3B1.1.

adjustment § 5C1.2,

role

USSG

comment.

Arroyo-Duarte under USSG § 3B1.1(c).

did,

in

fact,

receive

an

adjustment to this

Arroyo-Duarte

stipulated

adjustment in his plea agreement.

"To qualify for an adjustment

under this section, the defendant must have been the organizer, leader, manager, or USSG supervisor § 3B1.1, of one or more other

participants."

comment.

(n.2).

Therefore,

contrary to Arroyo-Duarte's argument, a defendant found to be in charge of simply one other participant is ineligible for the safety valve application. Because Arroyo-Duarte does not

dispute that he supervised at least one other participant, and indeed stipulated to an aggravated role adjustment under USSG § 3B1.1, he does not satisfy the requirements of 18 U.S.C.

§ 3553(f). application.

Accordingly, the district court properly denied its

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In his brief, Arroyo-Duarte additionally contends that the plea agreement of the did safety not preclude him from and requesting district

application

valve

provision,

the

court erred in requiring him to withdraw his guilty plea in order to argue for the safety valve application. district court correctly interpreted the plea Because the agreement as

precluding application of the safety valve, it was not error to require Arroyo-Duarte to choose between proceeding in conformity with the terms of the agreement or withdrawing the agreement entirely. Accordingly, we grant the Government's motion to

dismiss in part as to the claims raised under the Sentencing Guidelines, and deny the Government's motion to dismiss in part and affirm the sentence as to Arroyo-Duarte's statutory claim. 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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