US v. Jose Paz-Lopez

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UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--terminating Motion for other relief [998323828-2]; terminating Motion to dismiss appeal [998316047-2] Originating case number: 1:09-cr-00014-CCB-2 Copies to all parties and the district court/agency. [998531180] [09-5181]

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US v. Jose Paz-Lopez Doc. 0 Case: 09-5181 Document: 52 Date Filed: 02/24/2011 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5181 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSE FIDEL DE PAZ-LOPEZ, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:09-cr-00014-CCB-2) Submitted: January 26, 2011 Decided: February 24, 2011 Before MOTZ, KEENAN, and WYNN, Circuit Judges. Affirmed in part; dismissed in part by unpublished per curiam opinion. A. D. Martin, LAW OFFICE OF ANTHONY D. MARTIN, Greenbelt, Maryland, for Appellant. Judson T. Mihok, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. Dockets.Justia.com Case: 09-5181 Document: 52 Date Filed: 02/24/2011 Page: 2 PER CURIAM: Jose Fidel de Paz-Lopez appeals his convictions and 114-month sentence imposed following his guilty plea, pursuant to a written plea agreement, to one count of conspiracy to interfere with commerce by robbery, in violation of 18 U.S.C. 1951 (2006); and use of a firearm in furtherance of a crime of violence and aiding and abetting, in violation of 18 U.S.C. 924, 2 (2006). thirty months' The district court sentenced Paz-Lopez to on the robbery conspiracy, on the plus imprisonment eighty-four count. consecutive months' imprisonment firearms Counsel California, meritorious acted in 386 filed U.S. 738 for by a brief pursuant stating to Anders are v. no (1967), appeal, that there the grounds faith but to alleging debrief to Government and to bad a failing Paz-Lopez U.S. consider downward departure pursuant Sentencing Guidelines Manual 5K1.1 (2006). motion to dismiss the appeal on The Government has filed a the basis that Paz-Lopez explicitly waived his right to appeal his sentence in the plea agreement. Paz-Lopez opposes the motion, contending that he did not knowingly agree to the waiver, and that even if the waiver is valid, the Government's bad faith refusal to provide him an opportunity to cooperate is a claim beyond the scope of the waiver. Paz-Lopez filed a pro 2 se supplemental brief also Case: 09-5181 Document: 52 Date Filed: 02/24/2011 Page: 3 challenging the Government's failure to debrief him and move for a downward departure based on substantial assistance. Paz-Lopez also contends counsel rendered ineffective assistance by failing to explain the consequences of his plea. We review the validity of a waiver de novo. States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). United A waiver is valid if the defendant's agreement to the waiver was knowing and voluntary. United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992); United States v. Wessells, 936 F.2d 165, 167 (4th Cir. 1991). To determine we examine whether "the a waiver of is the knowing and intelligent, totality circumstances, including the experience and conduct of the accused, as well as the accused's educational background and familiarity with the terms of the plea agreement." F.3d 389, 400 (4th Cir. 2002) United States v. General, 278 (internal if a quotation marks and citation omitted). Generally, district court fully questions a defendant regarding the waiver of appellate rights during the Fed. R. Crim. P. 11 colloquy, the waiver is valid and enforceable. Cir. 2005). At the plea hearing, the district court fully complied with Fed. R. Crim. P. 11, and specifically ensured that PazLopez understood and agreed to the appellate waiver provision. Accordingly, we find that Paz-Lopez knowingly and voluntarily 3 United States v. Johnson, 410 F.3d 137, 151 (4th Case: 09-5181 Document: 52 Date Filed: 02/24/2011 Page: 4 entered his guilty plea and that his appellate waiver was also knowing and voluntary. We will enforce a valid waiver so long as "the issue being appealed is within the scope of the waiver." F.3d at 168. any sentence Blick, 408 Paz-Lopez explicitly waived his "right to appeal within or below the advisory guidelines range resulting from an adjusted offense level of 19, with a seven year consecutive sentence. . . ." his within-guidelines sentence Thus, Paz-Lopez's appeal of resulting from his adjusted offense level of nineteen falls within the scope of that waiver. Accordingly, we grant in part the Government's motion to dismiss the appeal. The appellate waiver does not, however, foreclose a claim of ineffective assistance of trial counsel. F.3d at 151. Johnson, 410 Nor does it preclude our Anders review of the Therefore, we deny in part A defendant may integrity of the Rule 11 proceeding. the Government's motion to dismiss the appeal. raise a claim of ineffective assistance of counsel "on direct appeal if and only if it conclusively appears from the record that his counsel did not provide effective assistance." States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998). that the record does not fell conclusively below an establish objective United We find trial of that counsel's assistance standard reasonableness. Accordingly, we decline to consider this claim 4 Case: 09-5181 Document: 52 Date Filed: 02/24/2011 Page: 5 on direct appeal. the Government in Finally, to the extent Paz-Lopez claims that the plea agreement for him and to we acted in bad and breached the faith declining earn a opportunity in his cooperate conclude perhaps reduction sentence, these claims are squarely contradicted by the record. States, 504 U.S. 181, 184-87 (1992). Wade v. United In accordance with Anders, we have reviewed the entire record in the case and have found no meritorious issues for appeal outside the scope of the appellate waiver. We therefore affirm Paz-Lopez's convictions and dismiss the appeal of his sentence. writing, This court requires that counsel inform Paz-Lopez, in of the right to petition the Supreme Court of the United States for further review. If Paz-Lopez requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel's motion must state that a copy thereof was served on Paz-Lopez. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional would process. AFFIRMED IN PART; DISMISSED IN PART 5

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