US v. Rhinelander Hernandez

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [999767535-2] Originating case number: 5:15-cr-00033-1 Copies to all parties and the district court/agency. [999908400].. [15-4771]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4771

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RHINELANDER HERNANDEZ,
Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Irene C. Berger, District
Judge. (5:15-cr-00033-1)

Submitted:

August 3, 2016

Decided:

August 11, 2016

Before WILKINSON and KEENAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

John H. Tinney, Jr., HENDRICKSON & LONG, PLLC, Charleston, West
Virginia, for Appellant. Miller A. Bushong, III, OFFICE OF THE
UNITED STATES ATTORNEY, Beckley, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Rhinelander

Hernandez

pled

guilty,

pursuant

to

a

plea

agreement, to distribution of a quantity of heroin, in violation
of 21 U.S.C. § 841(a)(1) (2012), and the district court imposed a
downward variant sentence of 120 months’ imprisonment.

Counsel

has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that there are no meritorious grounds for appeal
but questioning whether the district court erred in sentencing
Hernandez as a career offender.

In his pro se supplemental brief,

Hernandez also contends that the court erred in sentencing him as
a career offender and further argues that his former counsel
rendered

ineffective

assistance

by

failing

to

object

to

the

designation of the prior West Virginia conviction for conspiracy
to commit a felony as a predicate offense for purposes of the
career offender enhancement.

The Government moves to dismiss the

appeal pursuant to the appeal waiver provision in Hernandez’s plea
agreement.

Hernandez opposes dismissal.

For the reasons that

follow, we grant the motion and dismiss the appeal.
“We review the validity of an appeal waiver de novo, and will
enforce the waiver if it is valid and the issue appealed is within
the scope of the waiver.”

United States v. Copeland, 707 F.3d

522, 528 (4th Cir. 2013) (internal quotation marks omitted).

“The

validity of an appeal waiver depends on whether the defendant
knowingly and intelligently agreed to waive the right to appeal.”
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United States v. Blick, 408 F.3d 162, 169 (4th Cir. 2005).

To

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

totality

of

the

circumstances

.

.

.

,

including

the

background, experience, and conduct of the accused.” Id. (internal
quotation

marks

omitted).

“Generally,

if

a

district

court

questions a defendant regarding the waiver of appellate rights
during the [plea] colloquy and the record indicates that the
defendant understood the full significance of the waiver, the
waiver is valid.”

Copeland, 707 F.3d at 528 (internal quotation

marks omitted).
In his plea agreement, Hernandez waived his right to appeal
his conviction and sentence “on any ground whatsoever,” reserving
only his right to “appeal any sentence that exceeds the maximum
penalty prescribed by statute” and his right to file a “postconviction collateral attack or direct appeal based on a claim of
ineffective assistance of counsel.”

The language of this appeal

waiver is clear and unambiguous, and the record reveals that
Hernandez understood the full significance of the waiver.

The

court also confirmed that Hernandez was competent to plead guilty
and was entering his plea in the absence of threats, force, or
promises

outside

of

those

contained

in

the

plea

agreement.

Accordingly, we conclude that Hernandez’s appeal waiver is valid
and enforceable.

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We also conclude that Hernandez’s challenges to the career
offender enhancement fall squarely within the scope of the waiver.
Although Hernandez’s ineffective assistance claim is not waived,
it is not cognizable on direct appeal “[b]ecause there is no
conclusive evidence of ineffective assistance on the face of this
record.”
2016).

United States v. Faulls, 821 F.3d 502, 508 (4th Cir.

Indeed, Hernandez’s “claim should be raised, if at all, in

a 28 U.S.C. § 2255 motion.”

Id.

We have thoroughly reviewed the record in accordance with
Anders and have identified no potentially meritorious issues that
fall outside the scope of the appeal waiver.

We therefore grant

the Government’s motion and dismiss Hernandez’s appeal. This court
requires that counsel inform Hernandez, in writing, of the right
to petition the Supreme Court of the United States for further
review.

If Hernandez 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 Hernandez.

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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