US v. Jorge Sagastume
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [999622452-2] Originating case number: 8:14-cr-00137-PJM-1 Copies to all parties and the district court/agency. [999701323].. [15-4150]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4150
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JORGE NOEL SAGASTUME, a/k/a Jorge Noel Sagastume-Perez,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Peter J. Messitte, Senior District
Judge. (8:14-cr-00137-PJM-1)
Submitted:
October 29, 2015
Decided:
November 18, 2015
Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Megan E. Coleman, MARCUSBONSIB, LLC, Greenbelt, Maryland, for
Appellant.
Kelly O. Hayes, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Jorge Noel Sagastume appeals his conviction and 65-month
sentence
imposed
following
his
guilty
plea
to
conspiracy
to
distribute and possess with intent to distribute 500 grams or
more of cocaine, in violation of 21 U.S.C. § 846 (2012).
On
appeal, counsel filed a brief pursuant to Anders v. California,
386
U.S.
738
(1967),
stating
that
there
are
no
meritorious
grounds for appeal, but setting forth arguments challenging the
validity of Sagastume’s guilty plea.
motion
to
dismiss
the
appeal
waived
his
right
explicitly
on
to
sentence in the plea agreement.
The Government has filed a
the
ground
appeal
his
that
Sagastume
conviction
and
Although advised of his right
to do so, Sagastume has not filed a pro se supplemental brief.
For the reasons that follow, we affirm in part and dismiss in
part.
A criminal defendant may waive the right to appeal if that
waiver is knowing and intelligent.
492 F.3d 263, 270 (4th Cir. 2007).
United States v. Poindexter,
Generally, if the district
court fully questions a defendant regarding the waiver of his
right to appeal during the Fed. R. Crim. P. 11 colloquy and a
review of the record reveals that the defendant understood the
full
import
enforceable.
Cir.
2013
of
the
waiver,
the
waiver
is
both
valid
and
United States v. Copeland, 707 F.3d 522, 528 (4th
(2013).
“The
law
ordinarily
2
considers
a
waiver
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knowing, intelligent, and sufficiently aware if the defendant
fully
understands
the
nature
of
the
right
and
how
it
would
likely apply in general in the circumstances — even though the
defendant may not know the specific detailed consequences of
invoking it.”
(4th
Cir.
United States v. Thornsbury, 670 F.3d 532, 537
2012)
(internal
emphases omitted).
alteration,
quotation
marks,
and
Whether a defendant validly waived his right
to appeal is a question of law we review de novo.
United States
v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
Our
review
of
the
record
leads
us
to
conclude
that
Sagastume knowingly and voluntarily waived his right to appeal
his conviction and sentence.
Thus, review of any claims raised
by Sagastume that fall within the scope of his broad waiver is
barred.
On
appeal,
guilty plea.
court
counsel questions
the
validity
of
Sagastume’s
Specifically, he questions whether the district
adequately
complied
with
the
mandates
of
Rule
11
in
accepting Sagastume’s guilty plea and whether the district court
erred
in
failing
to
withdraw
his
guilty
plea
when
Sagastume
stated during sentencing that he was not aware that a mandatory
minimum
attorney
five
had
years
sentence
informed
him
would
that
be
imposed
Sagastume
sentence as low as three years’ imprisonment.
3
and
could
that
receive
his
a
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Sagastume’s appellate waiver does not foreclose a challenge
to the voluntariness of his plea.
Attar,
38
rule).
F.3d
727,
732–33
&
n.2
See, e.g., United States v.
(4th
Cir.
(applying
Because Sagastume did not move to withdraw his plea, we
review his Rule 11 hearing for plain error.
States,
1994)
133
Martinez,
S.
standard).
277
Ct.
F.3d
1121,
1126-27
517,
525
Henderson v. United
(2013);
(4th
Cir.
United
2002)
States
v.
(discussing
In the guilty plea context, a defendant demonstrates
that an error affected his substantial rights by “show[ing] a
reasonable probability that, but for the error, he would not
have entered the plea.”
United States v. Massenburg, 564 F.3d
337, 343 (4th Cir. 2009) (internal quotation marks omitted).
We
conclude that none of these claims are colorable.
The
district
Rule
11
statements
court
under
hearing
failed
oath
to
contained
inform
could
three
Sagastume:
result
in
his
omissions.
(1)
that
prosecution
The
false
for
perjury; (2) that the court could order restitution, and (3)
that the court would consider the 18 U.S.C. § 3553(a) (2012)
factors in fashioning his sentence.
Having reviewed the record,
however, we conclude that the court’s failure to discuss these
three things did not affect Sagastume’s substantial rights, and
there is no indication that Sagastume would not have pled guilty
had the district court’s plea colloquy been more exacting.
Massenburg, 564 F.3d at 343.
4
See
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Sagastume’s last challenge to the knowing nature of his
plea sounds in ineffective assistance.
Specifically, he claims
that the district court should have allowed him to withdraw his
plea
when
he
informed
the
court
at
sentencing
that
he
was
unaware of the statutory mandatory minimum of five years and
that counsel had informed him that he could receive a sentence
as
low
as
three
years’
imprisonment.
Unless
an
attorney’s
ineffectiveness conclusively appears on the face of the record,
ineffective
assistance
direct appeal.
claims
are
not
generally
should
on
United States v. Galloway, 749 F.3d 238, 241
(4th Cir.), cert. denied, 135 S. Ct. 215 (2015).
claims
addressed
be
raised
in
a
motion
brought
Instead, such
pursuant
to
28
U.S.C. § 2255 (2012), in order to permit sufficient development
of the record.
United States v. Baptiste, 596 F.3d 214, 216 n.1
(4th Cir. 2010).
Here, Sagastume’s assertion that he was not made aware of
the statutory mandatory minimum of five years is simply belied
by his statements at the Rule 11 hearing and the plea agreement
he knowingly signed.
conclusively
Strickland
establish
v.
Furthermore, because the record does not
ineffective
Washington,
466
assistance
U.S.
668,
of
counsel,
687-88
(1984),
see
we
decline to review these claims on direct appeal.
In
accordance
with
Anders,
we
have
reviewed
the
entire
record in the case and have found no meritorious issues for
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appeal outside the scope of the appellate waiver.
Accordingly,
we grant the Government’s motion to dismiss Sagastume’s appeal
of his sentence and affirm his conviction.
that
counsel
inform
Sagastume,
Supreme
Court
of
in
the
This court requires
writing,
United
of
the
States
right
for
to
petition
the
further
review.
If Sagastume requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel
may
move
representation.
in
this
court
for
leave
to
withdraw
from
Counsel’s motion must state that a copy thereof
was served on Sagastume.
We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials
before
this
court
and
argument
would
not
aid
the
decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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