US v. Candelario Gonzalez-Rivera

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:10-cr-00070-RJC-DSC-1 Copies to all parties and the district court/agency. [998823257].. [11-4220]

Appeal: 11-4220

Document: 41

Date Filed: 04/02/2012

Page: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4220

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CANDELARIO GONZALEZ-RIVERA, a/k/a Juancho, a/k/a Juan David,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Robert J. Conrad,
Jr., Chief District Judge. (3:10-cr-00070-RJC-DSC-1)

Submitted:

March 29, 2012

Decided:

April 2, 2012

Before WILKINSON, KING, and KEENAN, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam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

David G. Belser, BELSER & PARKE, P.A., Asheville, North
Carolina, for Appellant.
Anne M. Tompkins, United States
Attorney, Melissa L. Rikard, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 11-4220

Document: 41

Date Filed: 04/02/2012

Page: 2 of 4

PER CURIAM:
Candelario
sentence

imposed

Gonzalez-Rivera

following

his

appeals

guilty

plea

the
to

150-month

conspiracy

to

possess with intent to distribute heroin, in violation of 21
U.S.C.

§§ 841(b)(1)(A),

846
to

Gonzalez-Rivera

agreed

conviction

(2006).
waive

sentence

or

In

except

his
for

the

plea

agreement,

right

to

appeal

claims

of

ineffective

assistance of counsel or prosecutorial misconduct.

his

Although the

district court sustained some of Gonzalez-Rivera’s objections to
the presentence report, it varied upward from the Sentencing
Guidelines range of 87 to 108 months’ imprisonment and sentenced
him

to

150

sentence
that

months.

was

the

On

procedurally

Government

breaching

the

plea

appellate

rights

in

appeal,
and

Gonzalez-Rivera

substantively

committed
agreement.

argues

his

unreasonable

and

prosecutorial
Relying

Gonzalez-Rivera’s

on

plea

Government urges the dismissal of this appeal.

misconduct
the

waiver

agreement,

by
of
the

We affirm in

part and dismiss in part.
Gonzalez-Rivera first argues the district court erred
in determining the amount of drugs foreseeable to him and the
resulting Guidelines range.

He further argues the sentence was

substantively unreasonable because the upward variance was not
warranted.

A defendant may waive the right to appeal if that

waiver is knowing and intelligent.
2

United States v. Poindexter,

Appeal: 11-4220

Document: 41

Date Filed: 04/02/2012

492 F.3d 263, 270 (4th Cir. 2007).

Page: 3 of 4

Generally, if the district

court fully questions a defendant regarding the waiver of his
right to appeal during the plea colloquy performed in accordance
with

Fed.

R.

enforceable.

Crim.

P.

11,

the

waiver

is

both

valid

and

See United States v. Johnson, 410 F.3d 137, 151

(4th Cir. 2005).

The question of whether a defendant validly

waived his right to appeal is a question of law that this court
reviews de novo.

United States v. Blick, 408 F.3d 162, 168 (4th

Cir. 2005).
After reviewing the record, we conclude that GonzalezRivera knowingly and voluntarily waived the right to appeal his
sentence, except claims of ineffective assistance of counsel or
prosecutorial misconduct, and that the magistrate judge fully
questioned him regarding the appeal waiver at the Fed. R. Crim.
P. 11 hearing.

Accordingly, the waiver is valid and his claims

challenging the reasonableness of his sentence are foreclosed by
that

waiver.

Accordingly,

we

dismiss

this

portion

of

the

appeal.
Gonzalez-Rivera,

however,

claims

he

is

entitled

to

resentencing because the Government breached the plea agreement
by

failing

to

recommend

Guidelines range.

a

sentence

at

the

bottom

of

the

He suggests the Government’s breach amounted

to prosecutorial misconduct, a claim not barred by the waiver.
Because Gonzalez-Rivera failed to raise this issue before the
3

Appeal: 11-4220

Document: 41

Date Filed: 04/02/2012

Page: 4 of 4

district court, we review for plain error.
States, 556 U.S. 129, 133-34 (2009).

Puckett v. United

To prevail on his claim

under this standard, Gonzalez-Rivera must demonstrate “that an
error occurred, that the error was plain, and that the error
affected his substantial rights.”

United States v. Muhammad,

478 F.3d 247, 249 (4th Cir. 2007).

He must also establish that

the error “was so obvious and substantial that failure to notice
and

correct

reputation

it

of

affected

the

the

judicial

fairness,

integrity

proceedings.”

United

or

public

States

v.

McQueen, 108 F.3d 64, 66 (4th Cir. 1997) (internal quotation
marks and alteration omitted).

The Government was obligated

under the plea agreement not to oppose a sentence at the bottom
of the Guidelines range.

Our review of the record reveals no

breach

on

of

the

agreement

this

basis.

Because

Gonzalez-

Rivera’s prosecutorial misconduct claim is not barred by the
waiver, we affirm in this regard.
Accordingly, we affirm in part and dismiss in part.
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

4