UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4805
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE GINEZ HERNANDEZ, a/k/a Gumby,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (5:07-cr-00063-gec-jgw-15)
Submitted: May 15, 2009 Decided: June 5, 2009
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Aaron L. Cook, AARON L. COOK, PC, Harrisonburg, Virginia, for
Appellant. Julia C. Dudley, United States Attorney, Donald R.
Wolthuis, Assistant United States Attorney, Roanoke, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Ginez Hernandez pled guilty pursuant to a written
plea agreement to conspiracy to manufacture, distribute, and
possess with intent to distribute cocaine hydrochloride, cocaine
base, and methamphetamine, in violation of 21 U.S.C. § 846
(2006). Hernandez was sentenced to seventy-six months’
imprisonment. ∗ Finding no error, we affirm.
On appeal, counsel contends that Hernandez’s sentence
is substantively unreasonable. The Government asserts that this
court should refuse to consider the appeal based on the appeal
waiver provision in Hernandez’s plea agreement. Alternatively,
the Government contends that the sentence imposed by the
district court is reasonable.
Under the terms outlined in the plea agreement,
Hernandez “agree[d] that after [his] full and fair sentencing
hearing, [he would] not then appeal any sentencing guidelines
factors or the Court’s application of the sentencing guidelines
factors to the facts of [his] case.” Hernandez further agreed
that he was “knowingly and voluntarily waiving any right to
∗
Although Hernandez was subject to a statutory mandatory
minimum of ten years, see 21 U.S.C.A. § 841(b)(1)(A) (West 1999
& Supp. 2008), application of the safety-valve permitted the
district court to “impose a sentence in accordance with the
applicable guidelines without regard to [the] statutory minimum
sentence.” U.S. Sentencing Guidelines Manual § 5C1.2(a) (2007).
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appeal sentencing guidelines factors” and that he was
“voluntarily willing to rely on the Court in sentencing [him]
under the Sentencing Guidelines.”
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006). United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). “Whether a defendant
has effectively waived the right to appeal is an issue of law
that we review de novo.” United States v. Blick, 408 F.3d 162,
168 (4th Cir. 2005).
Where, as here, the United States seeks enforcement of
an appeal waiver and there is no claim that the United
States breached its obligations under the plea
agreement, we will enforce the waiver to preclude a
defendant from appealing a specific issue if the
record establishes that the waiver is valid and that
the issue being appealed is within the scope of the
waiver.
Id. (internal citations omitted). An appeal waiver is valid if
“the defendant knowingly and intelligently agreed to waive the
right to appeal.” Id. at 169. However, “[a]n 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 [Fed. R. Crim. P.] 11
colloquy and the record indicates that the defendant did not
otherwise understand the full significance of the waiver.”
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005)
(internal quotation marks and citation omitted).
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At the Rule 11 hearing, it was established that
Hernandez was twenty-seven years old and had completed high
school. Hernandez confirmed that he understood English with the
aid of an interpreter. He did not have a history of mental
illness and was not under the influence of any medications or
controlled substances at the time of the hearing. Hernandez
acknowledged that he reviewed the plea agreement with his
attorney, voluntarily agreed to its terms, and signed it. The
magistrate judge specifically questioned Hernandez regarding the
appeal waiver, and Hernandez responded that he understood its
effects. Therefore, we conclude the appeal waiver is both valid
and enforceable.
However, because the appeal waiver is limited to
procedural challenges, counsel’s claim of substantive
unreasonableness falls outside the scope of the waiver and will
be considered on appeal. “Assuming that the district court’s
sentencing decision is procedurally sound, the appellate court
should then consider the substantive reasonableness of the
sentence imposed . . . tak[ing] into account the totality of the
circumstances, including the extent of any variance from the
Guidelines range.” Gall v. United States, 128 S. Ct. 586, 597
(2007). Appellate review of a district court’s imposition of a
sentence, “whether inside, just outside, or significantly
outside the Guidelines range,” is for abuse of discretion. Id.
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at 591. Sentences within the applicable Guidelines range may be
presumed by the appellate court to be reasonable. United States
v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
Counsel contends that the sentence is greater than
necessary to accomplish the goals of 18 U.S.C. § 3553(a) (2006).
The district court considered multiple factors in fashioning the
sentence, including Hernandez’s role in the offense, the
magnitude of the conspiracy, the sentences of other co-
conspirators, Hernandez’s need for substance abuse treatment,
and the application of the safety-valve. Moreover, Hernandez’s
sentence, which is within the advisory Guidelines range and
below the applicable statutory minimum, may be presumed
reasonable by this court. Thus, the district court did not
abuse its discretion in imposing the chosen sentence.
Accordingly, we affirm the judgment of the district
court. 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
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