US v. Daniel Luna

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [999651613-2] Originating case number: 7:12-cr-00037-FA-5 Copies to all parties and the district court/agency. [999720136].. [15-4003]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4003

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL LUNA,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington.
David A. Faber,
Senior District Judge. (7:12-cr-00037-FA-5)

Submitted:

November 17, 2015

Decided:

December 17, 2015

Before GREGORY, WYNN, and THACKER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Joseph L. Bell, Jr., BATTS, BATTS & BELL, LLP, Rocky Mount,
North Carolina, for Appellant. Jennifer P. May-Parker, Phillip
Anthony Rubin, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Pursuant

to

a

written

plea

agreement,

Daniel

Luna

pled

guilty to: conspiracy to commit Hobbs Act robbery; using and
carrying

a

conspiracy

firearm
to

in

furtherance

distribute

and

to

of

a

crime

possess

of

with

violence;
intent

to

distribute more than five kilograms of cocaine; and kidnapping.
He received an aggregate sentence of 280 months.

Luna appeals,

contending that the sentence is substantively unreasonable.
The United States moves to dismiss the appeal based on a
waiver-of-appellate-rights provision in Luna’s plea agreement.
Luna opposes the motion, claiming that the waiver is invalidated
by the United States’ alleged breach of the agreement.

We grant

the motion to dismiss the appeal.

I
Luna contends that the Government breached its promise in
the plea agreement to inform the court at sentencing of the
“full extent” of his cooperation with authorities.

Because Luna

did not raise this claim before the district court, our review
is for plain error.
133-34

(2009).

To

See Puckett v. United States, 556 U.S. 129,
prevail

under

this

standard,

Luna

must

demonstrate “that an error occurred, that the error was plain,
and that the error affected his substantial rights.”
States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007).
2

United

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We conclude that there was no error in the Government’s
conduct.

At

sentencing,

the

cooperation to the court.
the

Government

had

not

Government

described

Luna’s

After Luna’s attorney objected that
described

the

full

value

of

Luna’s

cooperation, there was extensive discussion about the nature and
effect of his cooperation.
that

the

Government

Under these circumstances, we find

fulfilled

its

obligation

agreement and that there was no breach.

under

the

plea

See United States v.

Godwin, 189 F. App’x 277, 279 (4th Cir. 2006) (No. 05-4987).

II
Given
consider

the

lack

whether

of

Luna

a

breach

knowingly

by
and

the

Government,

intelligently

we

next

waived

his

right to appeal and whether the issue raised on appeal falls
within the scope of the waiver.

See United States v. Blick, 408

F.3d 162, 168-69 (4th Cir. 2005).

To decide whether the waiver

was knowing and intelligent, we consider “the totality of the
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.”

United

States v. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal
quotation marks omitted).

Other factors we consider are whether

the waiver language in the plea agreement was “unambiguous” and
“plainly

embodied,”

and

whether
3

the

district

court

fully

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questioned the defendant during the Fed. R. Crim. P. 11 colloquy
regarding

the

waiver.

Id.

at

400-401.

Generally,

if

the

district court specifically asked the defendant about the waiver
or the record otherwise indicates that the defendant understood
the

full

significance

of

the

waiver,

the

waiver

is

valid.

United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
Whether a defendant validly waived his right to appeal “is a
matter

of

law

that

we

review

de

novo.”

United

States

v.

Manigan, 592 F.3d 621, 626 (4th Cir. 2010).
Luna was twenty years old when he entered his plea.

He had

an eleventh-grade education, had not been treated for mental
illness or addiction within the prior two years and was not
presently under the influence of alcohol or drugs.

The waiver

provision was set forth clearly in a separate paragraph of the
plea

agreement,

which

Luna

signed.

Further,

the

Government

summarized the plea agreement — including the waiver provision —
at the Fed. R. Civ. P. 11 proceeding.
that

the

summary

was

accurate,

he

Luna assured the court
had

carefully

read

the

agreement and discussed it with his attorney, and he understood
everything

in

the

agreement.

Finally,

the

district

court

inquired during the plea colloquy whether Luna understood that
the

plea

agreement

replied that he did.
enforceable.

limited

his

appellate

rights,

and

Luna

We conclude that the waiver is valid and

Further, the issue Luna raises on appeal — whether
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sentence

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is

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substantively

unreasonable

—

falls

squarely

within the scope of the appellate waiver.

III
Accordingly, we grant the motion to dismiss the appeal.
dispense

with

oral

argument

because

the

facts

and

We

legal

arguments are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED

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