UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4913
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MELBA NOELY LAZO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:08-cr-00126-LMB-2)
Submitted: April 16, 2009 Decided: April 22, 2009
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
David J. Kiyonaga, Alexandria, Virginia, for Appellant. Erik R.
Barnett, Assistant United States Attorney, William Bradley
Russell, Jr., Special Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Melba Noely Lazo pled guilty to conspiracy to
distribute 500 grams or more of cocaine, in violation of 21
U.S.C. §§ 841(a)(1), 846 (2006), and was sentenced to forty-one
months’ imprisonment. She now appeals. The Government has
filed a motion to dismiss the appeal, based on Lazo’s waiver of
her appellate rights. Lazo opposes the motion.
Lazo signed a plea agreement wherein she waived her
right to appeal any sentence within the statutory maximum,
including the manner in which the sentence was determined. She
now seeks to challenge the district court’s denial of an
acceptance of responsibility reduction, which lies clearly
within the scope of her waiver. 1 Thus, we find the appeal waiver
to be valid and enforceable as to the acceptance of
responsibility issue, 2 and we therefore grant in part the United
States’ motion, and dismiss in part the appeal relative to the
calculation of Lazo’s sentence.
Lazo also contends that her judgment order is in
error, claiming it states that she was found to have obstructed
justice. We find no error in the order. The Government had
1
Lazo does not challenge the voluntariness of her plea.
2
See United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005).
2
filed a motion seeking to deny Lazo a three-level reduction for
acceptance of responsibility and to increase her offense level
by three points for obstruction of justice. The district court
declined to give Lazo the acceptance of responsibility
reduction, but also declined to further increase her offense
level for obstruction of justice. The district court's order
restated the style of the Government’s motion, granted the
motion, and increased Lazo’s offense level by three points, its
only exception taken to the factual findings of the presentence
investigation report, which had given her the benefit of a three
point reduction for acceptance of responsibility. While the
written order of judgment does not specifically reflect the
district court’s oral pronouncement declining the Government’s
invitation to increase Lazo’s sentence for obstruction of
justice, the sentence reflected on the judgment order reflects
the same orally-pronounced sentence of an increase in Lazo’s
offense level of only three points. Hence, we find no error in
the judgment order or any contradiction between the oral
pronouncement and the criminal judgment order, such that remand
is necessary.
Accordingly, we dismiss in part on the Government’s
motion, except for Lazo’s claim as to whether the judgment order
is correct, which claim is not encompassed by her appellate
waiver but which is, in any event, without merit. We dispense
3
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
4