US v. Victor Mendoza-Montiel
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [998884901-2]; denying Motion to withdraw [998867514-2] Originating case number: 7:09-cr-00126-f-4 Copies to all parties and the district court/agency. [998957909].. [10-4591]
Appeal: 10-4591
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UNPUBLISHED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Affirmed in part, dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.
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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
trafficking crime, 18 U.S.C. § 924(c)(1), (2) (2006).
a
drug
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 MendozaMontiel’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
waiver is knowing and intelligent.
492 F.3d 263, 270 (4th Cir. 2007).
right
to
appeal
if
that
United States v. Poindexter,
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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United
with Rule 11, the waiver is both valid and enforceable.
States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
Whether a
defendant validly waived his right to appeal is a question of
United States v. Blick, 408
law this Court reviews de novo.
F.3d 162, 168 (4th Cir. 2005).
enforce
an
appeal
waiver
Where the Government seeks to
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
Id. at 168 & n.5.
within the scope of the waiver.
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
concerning
his
and
find
no
meritorious
two
convictions.
convictions.
3
issues
Accordingly,
we
for
appeal
affirm
the
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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
representation.
his
motion
for
leave
to
withdraw
from
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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