UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4167
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHET PAJARDO,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:04-cr-00323-WDQ-13)
Submitted: September 29, 2009 Decided: November 4, 2009
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael E. Lawlor, Andrew R. Szekely, LAWLOR & ENGLERT, LLC,
Greenbelt, Maryland, for Appellant. John Walter Sippel, Jr.,
Assistant United States Attorney, Jason M. Weinstein, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chet Pajardo pled guilty pursuant to a written plea
agreement to conspiracy to possess with intent to distribute and
to distribute five kilograms or more of cocaine, in violation of
21 U.S.C. § 846 (2006). In accordance with the negotiated term
of imprisonment detailed in the supplemental plea agreement, see
Fed. R. Crim. P. 11(c)(1)(C) (permitting parties to agree to a
specific sentence that is binding on the district court upon
acceptance of the plea agreement), Pajardo was sentenced by the
district court to 151 months’ imprisonment. Finding no error,
we affirm.
Appellate counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which he asserts there are
no meritorious issues for appeal but questions the adequacy of
the Fed. R. Crim. P. 11 hearing and the reasonableness of the
sentence. Pajardo filed a pro se supplemental brief, alleging
that the Government breached the plea agreement and that his
counsel provided ineffective assistance. The Government elected
not to file a responsive brief.
Initially, counsel questions whether the district
court complied with the requirements of Rule 11. As Pajardo did
not seek to withdraw his guilty plea in the district court or
otherwise preserve any alleged Rule 11 error by timely
objection, review by this court is for plain error. United
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States v. Dominguez Benitez, 542 U.S. 74, 76 (2004); United
States v. Martinez, 277 F.3d 517, 524 (4th Cir. 2002). To
establish plain error, the defendant must show that an error
occurred, that the error was plain, and that the error affected
the defendant’s substantial rights. United States v. Olano, 507
U.S. 725, 732-34 (1993); United States v. Massenburg, 564 F.3d
337, 342-43 (4th Cir. 2009) (stating defendant bears burden of
establishing each of the plain error requirements). We have
reviewed the record and conclude that the district court
committed no reversible error in the Rule 11 hearing.
Counsel also questions the reasonableness of the
sentence imposed by the district court. Appellate review of a
district court’s imposition of a sentence is for abuse of
discretion. Gall v. United States, 552 U.S. 38, __, 128 S. Ct.
586, 591 (2007). After determining that Pajardo voluntarily
assented to the specific sentence detailed in the supplemental
plea agreement, the district court accepted the agreement. See
Fed. R. Crim. P. 11(c)(3) (permitting court to either “accept
the agreement, reject it, or defer a decision until the court
has reviewed the presentence report”). The sentence imposed by
the court comported with the terms of the agreement. Therefore,
the court did not abuse its discretion in imposing the chosen
sentence.
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Next, Pajardo asserts that the Government breached the
terms of the plea agreement by failing to move for an additional
one-level reduction under U.S. Sentencing Guidelines Manual
(“USSG”) § 3E1.1(b) (2005). “‘It is well-established that the
interpretation of plea agreements is rooted in contract law, and
that each party should receive the benefit of its bargain.’”
United States v. Bowe, 257 F.3d 336, 345 (4th Cir. 2001)
(quoting United States v. Peglera, 33 F.3d 412, 413 (4th Cir.
1994)). We review questions regarding the interpretation of
plea agreements de novo and factual questions for clear error.
United States v. Chase, 466 F.3d 310, 314 (4th Cir. 2006).
Pursuant to the terms of the original plea agreement,
the Government stated that it would move for an additional one-
level decrease under USSG § 3E1.1(b) “in recognition of
[Pajardo’s] timely notification of his intention to plead
guilty.” The presentence report awarded Pajardo the full three-
level reduction available under § 3E1.1 in anticipation of the
Government’s motion. However, this provision was rendered moot
when the district court accepted the negotiated 151-month
sentence outlined in the supplemental plea agreement. Since
Pajardo voluntarily entered into the supplemental plea agreement
and was sentenced in accordance with its terms, he cannot
establish that the Government breached the plea agreement.
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Finally, Pajardo alleges that his trial counsel
provided ineffective assistance by failing to object to the
Government’s alleged breach of the plea agreement. An
ineffective assistance of counsel claim generally is not
cognizable on direct appeal, but should instead be asserted in a
post-conviction motion under 28 U.S.C.A. § 2255 (West Supp.
2009). See United States v. Richardson, 195 F.3d 192, 198 (4th
Cir. 1999). We may address a claim of ineffective assistance on
direct appeal only if counsel’s ineffectiveness conclusively
appears from the record. United States v. Baldovinos, 434 F.3d
233, 239 (4th Cir. 2006). As previously discussed, the
Government did not breach the terms of the plea agreement.
Therefore, because the record does not conclusively establish
that counsel was ineffective, the claim is not cognizable on
direct appeal.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm the judgment of the district
court. This court requires that counsel inform his client, in
writing, of his right to petition the Supreme Court of the
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 this court for leave
to withdraw from representation. Counsel’s motion must state
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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
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