UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4072
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RODRIGO CALDERO MARTINEZ,
Defendant - Appellant.
No. 07-4431
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RENE DE LA CRUZ,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, District Judge.
(7:05-cr-00028-gec)
Submitted: February 5, 2008 Decided: April 18, 2008
Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.
No. 07-4072 affirmed; No. 07-4431 dismissed by unpublished per
curiam opinion.
William A. Mitchell, Jr., BRENNAN, SULLIVAN & MCKENNA, LLP,
Greenbelt, Maryland; Mark D. Kidd, OSTERHOUDT, PRILLAMAN, NATT,
HELSCHER, YOST, MAXWELL & FERGUSON, PLC, Roanoke, Virginia, for
Appellants. John L. Brownlee, United States Attorney, R. Andrew
Bassford, Assistant United States Attorney, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Rene De La Cruz and Rodrigo Caldero Martinez appeal
following their convictions and sentences for conspiracy to
distribute methamphetamine, in violation of 21 U.S.C. § 846 (2000).
De La Cruz contends that his guilty plea, entered pursuant to North
Carolina v. Alford, 400 U.S. 25 (1970), and containing an appeal
waiver, was not made knowingly, voluntarily, and intelligently, and
that the district court erred in accepting it. Martinez argues
that the district court erred in enhancing his sentence based upon
facts that were determined by the court by a preponderance of the
evidence, relying in part on statements by witnesses who did not
testify at his sentencing hearing.
A defendant may waive the right to appeal if that waiver
is knowing and intelligent. United States v. Amaya-Portillo, 423
F.3d 427, 430 (4th Cir. 2005). This court generally enforces
appeal waivers. United States v. Johnson, 410 F.3d 137, 151 (4th
Cir. 2005). “An appeal waiver is not knowingly or voluntarily made
if the district court fails to specifically question the defendant
concerning the waiver provision of the plea agreement during the
Rule 11 colloquy and the record indicates that the defendant did
not otherwise understand the full significance of the waiver.” Id.
(internal quotations and citation omitted). To determine whether
a waiver is knowing and intelligent, we examine “the totality of
the circumstances, including the experience and conduct of the
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accused, as well as the accused’s educational background and
familiarity with the terms of the plea agreement.” United
States v. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal
quotation marks and citation omitted). The validity of an
appellant’s waiver of his right to appeal is a question of law that
we review de novo. United States v. Blick, 408 F.3d 162, 168 (4th
Cir. 2005).
De La Cruz is a native of Mexico, where he completed the
eleventh grade, and he has limited abilities in the English
language. De La Cruz was advised by two attorneys concerning his
guilty plea, one of whom speaks Spanish. Both attorneys were
present at De La Cruz’s change of plea hearing and indicated their
belief that he understood the significance and implications of his
Alford plea. At the hearing, counsel for the Government explained
that De La Cruz was waiving his right to direct appeal under the
terms of his plea agreement. The district court questioned De La
Cruz extensively regarding his plea and the appeal waiver
provision. When the district court questioned De La Cruz
concerning his understanding of the appeal waiver provision, he
initially stated, “I don’t really understand what was explained to
me, the sentence they are going to give me, whether I’m going to
fight it or--what was that?” The district court then explained
that De La Cruz’s sentence would not be determined until after he
entered his guilty plea. The court asked whether De La Cruz
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understood that, pursuant to his plea agreement, he was waiving his
right to appeal the sentence that would be imposed and the court’s
decision to accept his guilty plea, to which De La Cruz answered
“Yes.” At each point during the plea hearing, when De La Cruz
indicated he did not understand a particular element of his plea,
the district court reiterated or further explained its question,
and De La Cruz affirmatively answered that he understood that
portion of his plea. Based upon the totality of the circumstances
surrounding De La Cruz’s guilty plea, his plea was made knowingly,
voluntarily, and intelligently. Accordingly, we dismiss De La
Cruz’s appeal, No. 07-4431, based upon the appeal waiver in his
plea agreement.
The district court applied a two-level enhancement to
Martinez’s sentence based upon his possession of a firearm during
the offense, pursuant to U.S. Sentencing Guidelines Manual (“USSG”)
§ 2D1.1(b)(1) (2006), and a three-level enhancement based upon
Martinez’s role as a manager or supervisor in the conspiracy, but
not an organizer or leader, pursuant to USSG § 3B1.1(b) (2006).
Martinez objected to the enhancements at his sentencing hearing,
but the district court applied them based upon testimony from a
special agent for the Drug Enforcement Administration that
Martinez’s role in the conspiracy evolved to that of a manager over
time and that Martinez exchanged methamphetamine for firearms on
two occasions during the course of the conspiracy. On cross-
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examination, the special agent admitted that he did not directly
take part in Martinez’s transactions with lower-level
methamphetamine distributors and that he was aware of the firearms
transactions based upon statements from persons who were
unavailable to testify.
Martinez cites Crawford v. Washington, 541 U.S. 36
(2004), for the proposition that the district court erred in
imposing a sentence based upon testimonial hearsay that was not
subjected to cross-examination. In Crawford, the Supreme Court
held that the Confrontation Clause prohibits the admission at trial
of testimonial statements that are not subject to
cross-examination. Id. at 50-51. The rule in Crawford has not
been extended to sentencing hearings. Accordingly, Martinez’s
argument is meritless, and we affirm his sentence, No. 07-4072.
In sum, we dismiss De La Cruz’s appeal and affirm the
sentence imposed by the district court as to Martinez. 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.
No. 07-4072 AFFIRMED
No. 07-4431 DISMISSED
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