US v. Omar Gualtero

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [999644188-2] Originating case number: 1:13-cr-00310-GBL-2 Copies to all parties and the district court/agency. [999702295].. [15-4246]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4246

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OMAR FABIAN VALDES GUALTERO, a/k/a Gordo,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:13-cr-00310-GBL-2)

Submitted:

November 17, 2015

Decided:

November 19, 2015

Before SHEDD, DUNCAN, and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Edwin S. Booth, SHUTTLEWORTH, RULOFF, SWAIN, HADDAD & MORECOCK,
P.C., Virginia Beach, Virginia; Maureen Leigh White, Richmond,
Virginia; for Appellant.
Michael Phillip Ben’Ary, Assistant
United States Attorney, Alexandria, Virginia; Stacey Kyle Luck,
Special
Counsel,
UNITED
STATES
DEPARTMENT
OF
JUSTICE,
Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Omar

Fabian

sentence

for

internationally
§§ 2,

Valdes

Gualtero

aiding

and

protected

1116(a)

protected

§ 1201(c) (2012).

abetting

person,

(2012),

internationally

appeals

and

in

his

the

murder

violation

conspiracy

person,

in

conviction

of

to

violation

and

of
18

an

U.S.C.

kidnap
of

18

an

U.S.C.

On appeal, counsel for Valdes Gualtero filed

a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting that there are no meritorious issues for appeal and
acknowledging Valdes Gualtero’s waiver of appellate rights but
questioning

the

application

obstruction of justice.

of

a

sentencing

enhancement

for

Valdes Gualtero has not filed a pro se

supplemental brief despite notice of his right to do so.

The

Government has moved to dismiss the appeal as barred by the
appellate waiver included in Valdes Gualtero’s plea agreement.
Pursuant to a plea agreement, a defendant may waive his
appellate rights under 18 U.S.C. § 3742 (2012).

United States

v. Archie, 771 F.3d 217, 221 (4th Cir. 2014), cert. denied, 135
S. Ct. 1579 (2015).

A waiver will preclude an appeal of “a

specific issue if . . . the waiver is valid and the issue being
appealed is within the scope of the waiver.”
waiver

is

valid

intelligently.”

if

he

agreed

to

it

Id.

A defendant’s

“knowingly

and

United States v. Manigan, 592 F.3d 621, 627

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(4th Cir. 2010).

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Whether a defendant validly waived his right

to appeal is a question of law that we review de novo.

United

States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013).
Upon review of the plea agreement and the transcript of the
Fed. R. Crim. P. 11 hearing, we conclude that Valdes Gualtero
knowingly

and

voluntarily

conviction and sentence.

waived

his

right

to

appeal

his

The sentencing claim raised on appeal

clearly falls within the scope of this broad waiver.

Therefore,

we grant the motion to dismiss and dismiss Valdes Gualtero’s
appeal.

We have reviewed the entire record in accordance with

Anders and have found no meritorious issues for appeal outside
the scope of the waiver.
This court requires that counsel inform Valdes Gualtero, in
writing,

of

the

right

to

petition

United States for further review.
that

a

petition

be

filed,

but

the

Supreme

Court

of

the

If Valdes Gualtero requests

counsel

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 state that a copy thereof was served on Valdes Gualtero.

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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.

DISMISSED

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