US v. Orbin Adali Mendoza-Argueta
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal [999979476-2] Originating case number: 1:15-cr-00286-JKB-1 Copies to all parties and the district court/agency. [1000117433].. [16-4661]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4661
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ORBIN ADALI MENDOZA-ARGUETA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
James K. Bredar, District Judge.
(1:15-cr-00286-JKB-1)
Submitted:
February 13, 2017
Decided:
July 13, 2017
Before GREGORY, Chief Judge, THACKER, Circuit Judge, and DAVIS,
Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
A.D. Martin, LAW OFFICE OF ANTHONY D. MARTIN, Greenbelt,
Maryland, for Appellant. Michael Clayton Hanlon, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In accordance with a written plea agreement, Orbin Adali
Mendoza-Argueta (Mendoza) pled guilty to possession of firearms
by an alien illegally and unlawfully in the United States, 18
U.S.C. § 922(g)(5) (2012).
prison.
He was sentenced to 42 months in
Mendoza now appeals.
His attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), claiming
that the sentence is unreasonable.
Mendoza has filed a pro se
supplemental brief challenging both his conviction and sentence.
The
United
States
moves
to
waiver-of-appellate-rights
dismiss
the
appeal
in
the
provision
Mendoza opposes the motion.
based
plea
upon
a
agreement.
We grant the motion to dismiss the
appeal.
I
We review de novo the validity of an appeal waiver.
United
States v. Copeland, 707 F.3d 522, 528 (4th Cir. 2013).
Where
the Government seeks to enforce an appeal waiver and did not
breach its obligations under the plea agreement, we will enforce
the
waiver
knowingly
if
and
the
record
establishes
intelligently
waived
his
that
(1)
right
the
to
defendant
appeal,
and
(2) the issues raised on appeal fall within the scope of the
waiver.
United States v. Blick, 408 F.3d 162, 168-69 (4th Cir.
2005).
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A
To determine whether a waiver is knowing and intelligent,
we examine “the totality of the circumstances, including the
experience and conduct of the accused, as well as the accused’s
educational background and familiarity with the terms of the
plea agreement.”
(4th
Cir.
United States v. General, 278 F.3d 389, 400
2002)
(internal
quotation
marks
omitted).
Other
factors to be considered are whether the waiver language in the
plea
agreement
was
“unambiguous”
and
“plainly
embodied,”
and
whether the district court fully questioned the defendant during
the Fed. R. Crim. P. 11 colloquy regarding the waiver of his
right to appeal.
Id. at 400-01; see United States v. Johnson,
410 F.3d 137, 151 (4th Cir. 2005); United States v. Wessells,
936
F.3d
165,
167-68
(4th
Cir.
1991).
Generally,
if
the
district court specifically questioned the defendant regarding
the waiver during the colloquy or the record otherwise indicates
that
the
defendant
understood
waiver, the waiver is valid.
the
full
significance
of
Johnson, 410 F.3d at 151.
Mendoza’s plea agreement provided in relevant part:
The Defendant knowingly waives all right . . . to
appeal the Defendant’s conviction. . . . The Defendant
. . . knowingly waive[s] all right to appeal whatever
sentence is imposed (including the right to appeal any
issues that relate to the establishment of the
advisory guidelines range, the determination of the
defendant’s criminal history, the weighing of the
sentencing factors, and the decision whether to impose
and the calculation of any term of imprisonment, fine,
3
the
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order of forfeiture, order of restitution, and term or
condition of supervised release.
In signing the agreement, Mendoza acknowledged:
I have read this agreement . . . and carefully
reviewed every part of it with my attorney.
I
understand it, and I voluntarily agree to it. . . . I
am completely satisfied with the representation of my
attorney.
At the Rule 11 hearing, Mendoza advised the court that he
was 37, had the equivalent of a high school education, and was
not under the influence of any medication or alcohol.
He stated
that he was pleading guilty freely and voluntarily and that the
factual basis offered in support of the plea was accurate.
was entirely satisfied with his attorney’s services.
He
He had
read the plea agreement, which he understood, and had discussed
it with his attorney.
The court reviewed the terms of the
appellate waiver with Mendoza, who said that he understood it.
Our review of the hearing transcript discloses that the court
fully complied with Rule 11.
We conclude that, under the totality of the circumstances,
Mendoza knowingly and voluntarily waived his right to appeal
both his conviction and sentence.
B
Under
Blick,
the
next
question
is
whether
the
issues
Mendoza seeks to raise on appeal fall within the scope of the
waiver.
We conclude that they do.
4
The only issues raised in
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the briefs are whether the conviction is valid and whether the
sentence is reasonable.
the waiver.
Those issues are clearly encompassed by
We therefore hold that Mendoza validly waived his
right to challenge his conviction and sentence.
II
Pursuant to Anders, we have reviewed the entire record and
have found no meritorious issues for appeal.
grant the motion to dismiss the appeal.
that
counsel
inform
Mendoza,
in
the
petition
the
Supreme
Court
of
review.
If
Mendoza
requests
This court requires
writing,
that
United
a
Accordingly, we
of
the
States
petition
right
for
be
to
further
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 Mendoza.
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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