US v. Jose Yunides Molina Mendoza

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [999819494-2] Originating case number: 8:15-cr-00191-PWG-1 Copies to all parties and the district court/agency. [999929066].. [15-4800]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4800

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE YUNIDES MOLINA MENDOZA, a/k/a Jose Mendoza, a/k/a Jose
Y. Mendoza,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:15cr-00191-PWG-1)

Submitted:

August 29, 2016

Before FLOYD and
Circuit Judge.

THACKER,

Decided:

Circuit

Judges,

September 14, 2016

and

DAVIS,

Senior

Dismissed in part; affirmed in part by unpublished per curiam
opinion.

Marc Gregory Hall, LAW OFFICES OF MARC G. HALL, P.C., Greenbelt,
Maryland, for Appellant. Sumon Srinivas Dantiki, OFFICE OF THE
UNITED
STATES
ATTORNEY,
Francesca
Anne
Liquori,
Special
Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jose

Yunides

Molina

Mendoza

(Mendoza)

pleaded

guilty,

pursuant to a written plea agreement, to reentry of an alien
deported after conviction for an aggravated felony, in violation
of

8

U.S.C.

§ 1326(a),

(b)(2)

(2012).

The

district

court

calculated Mendoza’s advisory Guidelines range under the U.S.
Sentencing Guidelines Manual at 57 to 71 months’ imprisonment
and sentenced Mendoza to 46 months’ imprisonment.
Mendoza’s

counsel

California,

386

meritorious

issues

has

U.S.

filed
738

for

a

brief

(1967),

appeal,

pursuant

stating

but

that

questioning

On appeal,

to

Anders

there

are

whether

v.
no
the

district court abused its discretion in imposing the 46-month
sentence.
Mendoza’s

The Government has moved to dismiss the appeal of
sentence

based

on

the

included in the plea agreement.

waiver

of

appellate

rights

Mendoza was informed of his

right to file a pro se supplemental brief, but he has not done
so.

We dismiss in part and affirm in part.
A defendant may waive the right to appeal if that waiver is

knowing and intelligent.

United States v. Poindexter, 492 F.3d

263, 270 (4th Cir. 2007).

Generally, if the district court

fully questions a defendant regarding the waiver of his right to
appeal during a plea colloquy performed in accordance with Fed.
R.

Crim.

P.

11,

the

waiver

is

2

both

valid

and

enforceable.

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

of

law

that

this

court

reviews

de

novo.

United

States v. Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012).
Our review of the record leads us to conclude that Mendoza
knowingly

and

voluntarily

46-month sentence.

waived

the

right

to

appeal

his

We therefore grant the Government’s motion

to dismiss and dismiss the appeal of Mendoza’s sentence.
The Government does not seek to enforce the appeal waiver
with

respect

“perform

to

the

conviction.

Mendoza’s

required

conviction,

Anders

review”

and

we

with

therefore

respect

See Poindexter, 492 F.3d at 271.

to

may
that

In accordance

with Anders, we have reviewed the remainder of the record in
this

case

and

have

found

no

meritorious

issues

for

appeal.

We therefore affirm Mendoza’s conviction.
This
writing,

court
of

the

requires

that

right

petition

to

United States for further review.

counsel
the

inform
Supreme

Mendoza,
Court

of

in
the

If Mendoza requests that a

petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave

to

withdraw

from

representation.

Counsel’s

state that a copy thereof was served on Mendoza.

3

motion

must

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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 IN PART;
AFFIRMED IN PART

4