US v. Bartolo Penaloza-Maldonado

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:15-cr-00093-FL-1 Copies to all parties and the district court/agency. [1000026738].. [16-4467]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4467

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BARTOLO PENALOZA-MALDONADO,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Louise W. Flanagan,
District Judge. (5:15-cr-00093-FL-1)

Submitted:

February 16, 2017

Decided:

February 21, 2017

Before GREGORY, Chief Judge, DUNCAN, Circuit Judge, and HAMILTON,
Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Todd A. Smith, LAW OFFICE OF TODD ALLEN SMITH, Graham, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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Penaloza-Maldonado

appeals

PER CURIAM:
Bartolo

his

conviction

and

sentence of 88 months of imprisonment for conspiracy to distribute
and possess with intent to distribute cocaine and methamphetamine,
in

violation

of

21

U.S.C.

§§ 841(b)(1)(A),

846

(2012),

and

possession of a firearm in furtherance of a drug trafficking crime,
in violation of 18 U.S.C. § 924(c)(1)(A) (2012). Appellate counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), concluding that there are no meritorious issues for appeal,
but questioning whether Penaloza-Maldonado’s appellate waiver is
valid, whether his plea was knowing and voluntary, and whether the
sentence imposed by the district court was reasonable.

We affirm.

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.”
182

(4th

Cir.

United States v. Adams, 814 F.3d 178,

2016).

“In

the

absence

of

extraordinary

circumstances, a properly conducted Rule 11 colloquy establishes
the validity of the waiver.”

Id.

Based on our review of the record, we conclude that PenalozaMaldonado’s Rule 11 colloquy was properly conducted, and PenalozaMaldonado knowingly and voluntarily agreed to waive his appellate
rights.

Consequently,

we

appellate waiver is valid.

conclude

that

Penaloza-Maldonado’s

Because the Government has not invoked

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the waiver, however, it does not limit our review.

See United

States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).
Next, a guilty plea is valid where the defendant voluntarily,
knowingly,

and

intelligently

pleads

guilty

“with

sufficient

awareness of the relevant circumstances and likely consequences.”
United

States

v.

Fisher,

711

F.3d

(internal quotation marks omitted).

460,

464

(4th

Cir.

2013)

Before accepting a guilty

plea, a district court must ensure that the plea is knowing,
voluntary, and supported by an independent factual basis.

Fed. R.

Crim. P. 11(b); United States v. DeFusco, 949 F.2d 114, 116 (4th
Cir. 1991).
Because Penaloza-Maldonado neither raised an objection during
the Fed. R. Crim. P. 11 proceeding nor moved to withdraw his guilty
plea in the district court, we review his Rule 11 proceeding for
plain error.
2014).

United States v. Sanya, 774 F.3d 812, 815 (4th Cir.

Our review of the record reveals that the district court

fully complied with Rule 11 in accepting Penaloza-Maldonado’s
guilty plea after a thorough hearing.

Accordingly, we conclude

that his plea was knowing and voluntary, see Fisher, 711 F.3d at
464, and thus “final and binding,” United States v. Lambey, 974
F.2d 1389, 1394 (4th Cir. 1992) (en banc).
We review Penaloza-Maldonado’s sentence for reasonableness
“under

a

deferential

abuse-of-discretion

standard.”

United

States v. McCoy, 804 F.3d 349, 351 (4th Cir. 2015) (quoting Gall v.
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United States, 552 U.S. 38, 41 (2007)), cert. denied, 137 S. Ct.
320 (2016).

This review entails appellate consideration of both

the procedural and substantive reasonableness of the sentence.
Gall, 552 U.S. at 51.

We presume that a sentence imposed within

the properly calculated Sentencing Guidelines range is reasonable.
United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
We have reviewed the record and conclude that the court
properly calculated the Guidelines range, treated the Guidelines
as advisory rather than mandatory, gave the parties an opportunity
to argue for an appropriate sentence, considered the 18 U.S.C.
§ 3353(a)

factors,

selected

a

sentence

not

based

on

clearly

erroneous facts, and sufficiently explained the chosen sentence.
Furthermore, Penaloza-Maldonado’s sentence of 88 months fell below
the range recommended by the Guidelines.

Therefore, we conclude

that Penaloza-Maldonado’s sentence is reasonable.
In accordance with Anders, we have reviewed the entire record
in this case and have found no meritorious issues for appeal.
therefore

affirm

the

district

court’s

judgment.

This

We

court

requires that counsel inform Penaloza-Maldonado, in writing, of
the right to petition the Supreme Court of the United States for
further review.
filed,

but

If Penaloza-Maldonado requests that a petition be

counsel

believes

that

such

a

petition

would

be

frivolous, then counsel may move in this court for leave to

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withdraw from representation.

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Counsel’s motion must state that a

copy thereof was served on Penaloza-Maldonado.
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

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