UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5268
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TONY ARISMENDY PEGUERO,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:07-cr-00017-RLV-DCK-1)
Submitted: July 20, 2009 Decided: August 3, 2009
Before MOTZ, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Denzil H. Forrester, Charlotte, North Carolina, for Appellant.
Edward R. Ryan, Acting United States Attorney, Charlotte, North
Carolina, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tony Arismendy Peguero pled guilty pursuant to a plea
agreement to possession with the intent to distribute five
kilograms of cocaine and aiding and abetting the same, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) (2006) and
18 U.S.C. § 2 (2006). After finding Peguero eligible for the
safety valve, 18 U.S.C. § 3553(f) (2006), the district court
sentenced him to 108 months’ imprisonment. On appeal, Peguero
claims that his guilty plea was unknowing and involuntary. The
Government urges dismissal of the appeal on the ground that
Peguero validly waived his right to appeal his conviction in his
plea agreement. We affirm.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent. See United States v. Blick,
408 F.3d 162, 169 (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. See United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005). Whether a defendant
validly waived his right to appeal is a question of law that we
review de novo. See Blick, 408 F.3d at 168. Our review of the
record reveals that Peguero knowingly and voluntarily waived his
right to appeal his conviction and sentence.
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We conclude, however, that Peguero’s assertion that
his guilty plea was involuntary and that the district court
erred in accepting his plea constitutes an exception to the
appellate waiver because it presents a “colorable”
constitutional claim. See, e.g., United States v. Attar,
38 F.3d 727, 733 n.2 (4th Cir. 1994). Accordingly, we decline
the Government’s suggestion to dismiss the appeal.
Nevertheless, although we possess jurisdiction to consider this
claim, we find it to be without merit. The record confirms that
the magistrate judge conducted a thorough Rule 11 hearing,
ensuring that Peguero’s guilty plea was knowingly and
voluntarily made. Peguero’s belated claim that he was confused
at the hearing and did not understand the consequences of his
plea is simply belied by the record.
Accordingly, we affirm the district court’s judgment.
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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