UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5264
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDWIN F. ALVANEZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge.
(8:07-cr-00326-DKC-2)
Submitted: October 15, 2009 Decided: October 19, 2009
Before SHEDD, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Warren E. Gorman, Chevy Chase, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Peter M. Nothstein,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edwin F. Alvanez appeals from his conviction on a
guilty plea and sentence on charges of knowing possession of an
unregistered firearm, in violation of 26 U.S.C. §§ 5841,
5861(d), 5871 (2006) (Count One), and knowing possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922
(g)(1) (2006) (Count Nine). Alvanez filed a motion to withdraw
his guilty plea, which the district court denied. The district
court sentenced him to 120 months’ imprisonment on Count One and
60 months’ imprisonment on Count Nine, to run consecutively, for
a total term of imprisonment of 180 months. He appeals,
asserting that the district court erred in denying his motion to
withdraw his guilty plea, and in calculating his sentence. He
further asserts ineffective assistance of counsel. We affirm.
We review Alvanez' claim of error in the district
court’s denial of his motion to withdraw his guilty plea for
abuse of discretion. See United States v. Ubakanma, 215 F.3d
421, 424 (4th Cir. 2000). Alvanez contends that his guilty plea
was involuntary because he had limited education and
intelligence. In light of the district court’s full compliance
with Fed. R. Crim. P. 11 in accepting Alvanez’ guilty plea,
during which Alvanez had the full advice of counsel, he has not
“offered credible evidence that his plea was not knowing or
2
otherwise involuntary.” Id. 1 He also asserts that the plea was
involuntary because the district court later enhanced his
sentence four levels, 2 an enhancement which was not anticipated
by the parties at the time of the plea. However, the record
reflects that Alvanez was fully informed that the district court
was not bound at sentencing by the guidelines calculation in the
plea agreement, and he admitted to the facts supporting the
enhancement of which he now complains. On these facts, we find
no abuse of discretion in the court’s denial of Alvanez’ motion
to withdraw his plea.
Alvanez also asserts error in the district court’s
application of the USSG § 2K2.1(b)(6) enhancement, claiming that
it was not included in the plea agreement and, citing Apprendi
v. New Jersey, 530 U.S. 466 (2000), asserting that it should
have been submitted to a jury for proof beyond a reasonable
doubt. As stated above, the district court was not bound by the
plea agreement in rendering its sentence, a fact of which
1
Alvanez’ expert witness, Dr. David Williamson, who
testified at sentencing that Alvanez had limited intelligence
and education, did not opine that Alvanez was unable to
understand the charges against him or his rights, or that
Alvanez’ limitations rendered him incompetent to plead guilty.
2
The four-level enhancement was based on Alvanez’ use of
the firearm during the commission of another felony, pursuant to
U.S. Sentencing Guidelines Manual (“USSG”), § 2K2.1(b)(6)
(2008).
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Alvanez was fully aware. Nor does Apprendi provide relief here,
because Alvanez admitted the facts on which the district court
relied in applying the enhancement. Id. at 490.
Finally, Alvanez’ ineffective assistance of counsel
claim is not cognizable on direct appeal unless such
ineffectiveness appears conclusively on the face of the record.
United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
As our review does not demonstrate such ineffectiveness, we
decline to consider Alvanez’ claim at this juncture.
Accordingly, we affirm Alvanez’ conviction and
sentence. 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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