US v. Arroyo-Duarte
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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)
January 22, 2010
February 26, 2010
Before NIEMEYER and Senior Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
distribution or possession with intent to distribute more than fifty grams of amphetamine, (West in violation 2009), of 21 U.S.C.A. or
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
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
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
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:
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
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).
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
includes aggravated (n.5).
received § 3B1.1.
adjustment § 5C1.2,
Arroyo-Duarte under USSG § 3B1.1(c).
adjustment to this
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
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
In his brief, Arroyo-Duarte additionally contends that the plea agreement of the did safety not preclude him from and requesting district
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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