US v. Osciel Estrada

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal in part [999136852-2] Originating case number: 7:11-cr-00123-F-1 Copies to all parties and the district court/agency. [999174133].. [13-4033]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4033

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
OSCIEL GARCIA ESTRADA,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:11-cr-00123-F-1)

Submitted:

August 8, 2013

Decided:

August 16, 2013

Before WILKINSON, MOTZ, and AGEE, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam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

C. Burell Shella, SHELLA, HARRIS & AUS, PC, Durham, 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Unpublished opinions are not binding precedent in this circuit.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:
Osciel Garcia Estrada pleaded guilty to conspiracy to
possess with intent to distribute cocaine, in violation of 21
U.S.C. § 846 (2006).
140

months

of

The district court sentenced Estrada to

imprisonment

and

he

now

appeals.

Appellate

counsel has filed a brief pursuant to Anders v. California, 386
U.S.

738

(1967),

reasonable.

questioning

whether

Estrada’s

sentence

is

Estrada filed a pro se supplemental brief raising

additional sentencing issues.

In addition, the Government has

filed a motion to dismiss the appeal based on the waiver in the
plea agreement.

For the reasons that follow, we affirm the

conviction and dismiss Estrada’s appeal of his sentence.
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2006).
States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).

United
A waiver

will preclude appeal of a specific issue if the waiver is valid
and

the

States v.
question

issue

is

Blick,
of

within
408

whether

F.3d
a

the

scope

162,

defendant

168

of

the

(4th

validly

waiver.

Cir.

waived

United

2005).
his

right

The
to

appeal is a question of law that this court reviews de novo.
Id. at 168.
“The validity of an appeal waiver depends on whether
the defendant knowingly and intelligently agreed to waive the
right to appeal.”

Id. at 169 (citation omitted).
2

To determine

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whether a waiver is knowing and intelligent, we examine “the
totality

of

the

circumstances,

including

the

experience

and

conduct of the accused, as well as the accused’s educational
background

and

agreement.”
Cir.

2002)

familiarity

with

the

terms

of

the

plea

United States v. General, 278 F.3d 389, 400 (4th
(internal

quotation

marks

and

citation

omitted).

Generally, if the district court fully questions a defendant
regarding the waiver of his right to appeal during the Rule 11
colloquy,

the

waiver

is

both

valid

and

enforceable.

United

States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005); United
States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991).
In addition, the purpose of the Fed. R. Crim. P. 11
colloquy is to ensure that the plea of guilt is entered into
knowingly and voluntarily.
55, 58 (2002).

See United States v. Vonn, 535 U.S.

Accordingly, prior to accepting a guilty plea, a

trial court, through colloquy with the defendant, must inform
the defendant of, and determine that he understands, the nature
of

the

charges

to

which

the

plea

is

offered,

any

mandatory

minimum penalty, the maximum possible penalty he faces, and the
various rights he is relinquishing by pleading guilty.
Crim. P. 11(b).

Fed. R.

The court also must determine whether there is

a factual basis for the plea.

Id.; United States v. DeFusco,

949 F.2d 114, 120 (4th Cir. 1991).

3

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We have thoroughly reviewed the record and conclude
that the district court fully complied with the requirements of
Rule 11.

We further conclude that Estrada’s guilty plea and

waiver of his appellate rights was knowing, intelligent, and
voluntary.

The appellate waiver included Estrada’s right to

appeal

sentence

any

imposed,

advisory Guidelines range.

except

a

sentence

above

the

Here, the district court sentenced

Estrada within the advisory Guidelines range and, therefore, he
has waived appellate review of his sentence.
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal.

Accordingly, we affirm the conviction, grant the

Government’s motion to dismiss in part, and dismiss Estrada’s
appeal of his sentence.

This court requires that counsel inform

Estrada, in writing, of the right to petition the Supreme Court
of the United States for further review.
that

a

petition

be

filed,

but

counsel

If Estrada requests
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

on

state

dispense

that

with

a
oral

copy

thereof

argument

was

because

4

served
the

Estrada.

facts

and

We
legal

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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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