United States v. Vasquez-Martinez , 322 F. App'x 344 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4551
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS FERNANDO VASQUEZ-MARTINEZ, a/k/a Killer Bill, a/k/a
Killer Beel, a/k/a Killer,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge.
(8:05-cr-00393-DKC-26)
Submitted: April 3, 2009 Decided: April 15, 2009
Before GREGORY and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
A. D. Martin, LAW OFFICE OF ANTHONY D. MARTIN, Greenbelt,
Maryland, for Appellant. James M. Trusty, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlos Fernando Vasquez-Martinez (“Martinez”) pled
guilty pursuant to a plea agreement to conspiracy to participate
in a racketeering enterprise, in violation of 18 U.S.C.
§ 1962(d) (2006). His counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting there are
no meritorious issues for appeal but claiming Martinez received
ineffective assistance of counsel prior to pleading guilty and
prior to sentencing. Martinez was informed of the opportunity
to file a pro se supplemental brief but chose not to do so. The
Government moves to dismiss the appeal based on Martinez’s
appeal waiver in the plea agreement. We affirm in part and
dismiss the appeal in part.
This court reviews the validity of an appeal waiver de
novo, United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000),
and will uphold a waiver of appellate rights if the waiver is
valid and the issue being appealed is covered by the waiver.
United States v. Attar, 38 F.3d 727, 731-32 (4th Cir. 1994). A
waiver is valid if the defendant’s agreement to the waiver was
knowing and voluntary. United States v. Marin, 961 F.2d 493,
496 (4th Cir. 1992). Generally, if a district court fully
questions a defendant regarding his waiver of appellate rights
during the Fed. R. Crim. P. 11 colloquy, the waiver is valid.
United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991).
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In a valid plea agreement, a defendant may waive the
right to appeal under 18 U.S.C. § 3742 (2006). See United
States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). An appeal
waiver, however, does not preclude appeals: (1) of a sentence
on the ground that it exceeds the statutory maximum or is based
on a constitutionally impermissible factor such as race;
(2) from the denial of a motion to withdraw a guilty plea based
on ineffective assistance of counsel; or (3) concerning a
violation of the Sixth Amendment right to counsel in proceedings
following the guilty plea. See United States v. Johnson, 410
F.3d 137, 151 (4th Cir. 2005). In addition, a waiver of
appellate rights cannot foreclose a colorable constitutional
challenge to the voluntariness of the guilty plea. See, e.g.,
Attar, 38 F.3d at 732-33 & n.2.
We find Martinez knowingly and voluntarily waived his
right to appeal his sentence so long as it was based upon an
offense level under the Sentencing Guidelines of thirty-eight or
lower. Because his sentence was based on an offense level of
thirty-six, we will grant the Government’s motion, enforce the
appeal waiver and dismiss the appeal from Martinez’s sentence.
We find Martinez’s ineffective assistance of counsel
claims are not cognizable on direct appeal because the basis for
his claims does not conclusively appear in the record. See
United States v. James, 337 F.3d 387, 391 (4th Cir. 2003).
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In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal
from the conviction. We therefore affirm Martinez’s conviction.
This court requires counsel inform his client, in writing, of
the right to petition the Supreme Court of the United States for
further review. If he requests a petition be filed, but counsel
believes 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
Martinez. Accordingly, we affirm in part and dismiss in part.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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