UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4803
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BEN VAZQUEZ-ESCALARA, a/k/a Bruce,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:07-cr-00041-JPB-JES-4)
Submitted: December 23, 2008 Decided: January 8, 2009
Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Brendan S. Leary, Assistant Federal Public Defender, Wheeling,
West Virginia, for Appellant. Thomas Oliver Mucklow, Assistant
United States Attorney, Martinsburg, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ben Vazquez-Escalara pled guilty to aiding and
abetting the possession with intent to distribute approximately
fifty-eight grams of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1) (2006), and 18 U.S.C. § 2 (2006). The district
court sentenced him to a 120-month term of imprisonment, the
statutory mandatory minimum sentence. On appeal, counsel has
filed an Anders 1 brief, stating that there are no meritorious
issues for appeal but questioning whether the district court
committed plain error in accepting Vazquez-Escalara’s guilty
plea. The Government has moved to dismiss the appeal based upon
Vazquez-Escalara’s waiver of appellate rights. We deny the
motion to dismiss and affirm.
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). Generally, if the
district court fully questions a defendant regarding the waiver
of his right to appeal during the Fed. R. Crim. P. 11 colloquy,
the waiver is both valid and enforceable. United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005); United States v.
Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991). The question of
whether a defendant validly waived his right to appeal is a
1
Anders v. California, 386 U.S. 738 (1967).
2
question of law that we review de novo. United States v. Blick,
408 F.3d 162, 168 (4th Cir. 2005).
Our review of the record leads us to conclude that
Vazquez-Escalara knowingly and voluntarily waived the right to
appeal his sentence. 2 Although the waiver provision in the plea
agreement precludes our review of the sentence, the waiver does
not preclude our review of any errors in Vazquez-Escalara’s
conviction that may be revealed by our review pursuant to
Anders. Our review of the transcript of the plea colloquy leads
us to conclude that the district court fully complied with the
mandates of Rule 11 in accepting Vazquez-Escalara’s guilty plea.
The district court ensured that the plea was entered knowingly
and voluntarily and was supported by an independent factual
basis. See United States v. DeFusco, 949 F.2d 114, 116, 119-20
(4th Cir. 1991). Thus, we deny the Government’s motion to
dismiss and affirm the conviction.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues not
covered by the waiver. We therefore affirm Vazquez-Escalara’s
conviction. This court requires that counsel inform his client,
in writing, of the right to petition the Supreme Court of the
2
Vazquez-Escalara, however, does not appeal any aspect of
his sentence.
3
United States for further review. If the client requests that a
petition be filed, but counsel believes that 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 the client. 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
4