UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4618
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ACZEL CARDENAS-SOSA,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (CR-03-31-WCB)
Submitted: April 20, 2007 Decided: May 16, 2007
Before WILKINS, Chief Judge, and WIDENER and WILKINSON, Circuit
Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Amanda L. Lewis, Martinsburg, West Virginia, for Appellant. Thomas
E. Johnston, United States Attorney, Thomas O. Mucklow, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Aczel Cardenas-Sosa1 appeals his convictions and sentence
following his guilty plea to distribution of methamphetamine,
see 21 U.S.C.A. § 841(a)(1) (West 1999), and unlawfully reentering
the United States after having been deported for committing an
aggravated felony, see 8 U.S.C.A. § 1326(a), (b)(2) (West 2005).
We affirm in part and dismiss in part.
I.
Cardenas-Sosa first argues that the district court abused its
discretion by denying his motion to withdraw his guilty plea.
See United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000)
(stating standard of review). Cardenas-Sosa sought to withdraw his
plea on the ground that his former attorney misinformed him about
the possible sentence he faced. After conducting an extensive
hearing, which included testimony from Cardenas-Sosa and his former
counsel, the district court determined that Cardenas-Sosa had not
established a sufficient basis for withdrawing his plea. In
particular, the district court found that Cardenas-Sosa had
received competent advice from his attorney and that the court had
made it clear during the plea colloquy that Cardenas-Sosa could
receive a sentence up to the statutory maximum.
1
At various points in the record, the defendant’s last name
is spelled “Cardenas-Sosa” and “Cardena-Sosa.” In accordance with
the parties’ briefs, we will use the former spelling.
2
A defendant may withdraw a guilty plea before sentencing if he
“can show a fair and just reason for requesting the withdrawal.”
Fed. R. Crim. P. 11(d)(2)(B). “[A] ‘fair and just’ reason ... is
one that essentially challenges ... the fairness of the Rule 11
proceeding.” United States v. Lambey, 974 F.2d 1389, 1394 (4th
Cir. 1992) (en banc). Having reviewed the record, we conclude that
the district court did not abuse its discretion in determining that
Cardenas-Sosa failed to carry this burden. We therefore affirm the
denial of Cardenas-Sosa’s motion to withdraw his guilty plea.2
II.
Cardenas-Sosa next raises various arguments challenging his
sentence. As part of his plea agreement, however, Cardenas-Sosa
waived the right to appeal any sentence within the statutory
maximum. Such an appeal waiver is valid if the defendant knowingly
and intelligently agreed to waive his right to appeal. See United
States v. Blick, 408 F.3d 162, 169 (4th Cir. 2005).
Our review of the record shows that Cardenas-Sosa knowingly
and intelligently waived the right to appeal his sentence. During
the plea colloquy, the district court questioned Cardenas-Sosa
regarding the appeal waiver, and he stated that he understood it.
Further, defense counsel confirmed that he and Cardenas-Sosa had
2
We have considered the other challenges to Cardenas-Sosa’s
convictions raised in his pro se supplemental briefs, and we
conclude that those arguments lack merit.
3
discussed the appellate waiver “at length” and that Cardenas-Sosa
fully understood its consequences. J.A. 69. Because Cardenas-Sosa
validly waived the right to appeal his sentence, we dismiss the
portion of Cardenas-Sosa’s appeal challenging that sentence.3
III.
For the reasons stated above, we affirm Cardenas-Sosa’s
convictions and dismiss the portion of Cardenas-Sosa’s appeal
challenging his sentence. 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
3
Even if Cardenas-Sosa had not waived the right to appeal his
sentence, we would conclude that his arguments challenging that
sentence are without merit.
4