US v. Tony Peguero

Filing 920090803

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5268 UNITED STATES OF AMERICA, Plaintiff Appellee, v. TONY ARISMENDY PEGUERO, Defendant Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:07-cr-00017-RLV-DCK-1) Submitted: July 20, 2009 Decided: August 3, 2009 Before MOTZ, KING, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Denzil H. Edward R. Carolina, Asheville, Forrester, Charlotte, North Carolina, for Appellant. Ryan, Acting United States Attorney, Charlotte, North Amy E. Ray, Assistant United States Attorney, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Tony Arismendy Peguero pled guilty pursuant to a plea agreement kilograms violation to of of possession cocaine 21 with the intent and to distribute the five in and and aiding abetting same, U.S.C. 841(a)(1), (b)(1)(A) (2006) 18 U.S.C. 2 (2006). After finding Peguero eligible for the safety valve, 18 U.S.C. 3553(f) (2006), the district court sentenced him to 108 months' imprisonment. On appeal, Peguero The that claims that his guilty plea was unknowing and involuntary. Government urges dismissal of the appeal on the ground Peguero validly waived his right to appeal his conviction in his plea agreement. A We affirm. may waive the right to appeal if that defendant waiver is knowing and intelligent. 408 F.3d 162, 169 (4th Cir. 2005). See United States v. Blick, Generally, if the district court fully questions a defendant regarding the waiver of his right to appeal during the Fed. R. Crim. P. 11 colloquy, the waiver is both valid and enforceable. See United States v. Whether a defendant Johnson, 410 F.3d 137, 151 (4th Cir. 2005). validly waived his right to appeal is a question of law that we review de novo. See Blick, 408 F.3d at 168. Our review of the record reveals that Peguero knowingly and voluntarily waived his right to appeal his conviction and sentence. 2 We his guilty in conclude, plea was however, involuntary that and Peguero's that the assertion district that court the erred accepting waiver his plea because See, constitutes it e.g., an exception a States to appellate presents United "colorable" v. Attar, constitutional claim. 38 F.3d 727, 733 n.2 (4th Cir. 1994). the Government's suggestion to Accordingly, we decline dismiss the appeal. Nevertheless, although we possess jurisdiction to consider this claim, we find it to be without merit. the magistrate that judge conducted a The record confirms that Rule 11 hearing, and thorough plea ensuring Peguero's guilty was knowingly voluntarily made. Peguero's belated claim that he was confused at the hearing and did not understand the consequences of his plea is simply belied by the record. Accordingly, we affirm the district court's judgment. 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 3

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