United States v. Ruiz

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-5144

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALDO CESAR RUIZ,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:08-cr-00126-F-1)

Submitted: January 14, 2010 Decided: February 16, 2010

Before MICHAEL, KING, and GREGORY, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam
opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Specialist, Raleigh, North Carolina, for Appellant.
Anne Margaret Hayes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Aldo Cesar Ruiz pled guilty pursuant to a written plea

agreement to one count of manufacturing child pornography in

violation of 18 U.S.C.A. § 2251(a) (West Supp. 2009), and was

sentenced to 300 months of imprisonment. On appeal, counsel

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), asserting there are no meritorious grounds for appeal

but raising the following issue: whether the district court

imposed an unreasonable sentence by failing to consider all the

18 U.S.C. § 3553(a) (2006) factors, failing to adequately

explain the sentence imposed, and treating the unreasonably high

advisory Sentencing Guidelines range as presumptively

reasonable. Ruiz, informed of his right to file a pro se

supplemental brief, has not done so. The Government has filed a

motion to dismiss, as waived, the appeal of Ruiz’s sentence.

For the reasons that follow, we dismiss the appeal of Ruiz’s

sentence and affirm his conviction.

Pursuant to a plea agreement, a defendant may waive

his appellate rights under 18 U.S.C. § 3742 (2006). United

States v. Wiggins, 905 F.2d 51, 52 (4th Cir. 1990). A waiver

will preclude appeal of specific issues if the waiver is valid

and the issues are within the scope of the waiver. United

States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). Whether a

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defendant validly waived his right to appeal is a question of

law that we review de novo. Id.

“The validity of an appeal waiver depends on whether

the defendant knowingly and intelligently agreed to waive the

right to appeal.” Id. at 169. To determine whether a waiver is

knowing and intelligent, this court examines “the totality of

the circumstances, including the experience and conduct of the

accused, as well as the accused’s educational background and

familiarity with the terms of the plea agreement.” United

States v. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal

quotation marks and citation omitted). Generally, if the

district court specifically questions a defendant regarding the

waiver of his right to appeal during the Rule 11 colloquy, the

waiver is both valid and enforceable. United States v. Johnson,

410 F.3d 137, 151 (4th Cir. 2005); United States v. Wessells,

936 F.2d 165, 167-68 (4th Cir. 1991).

We have reviewed the record and conclude that Ruiz

knowingly and intelligently entered into the plea agreement and

understood the appellate waiver, and that the issue raised by

counsel is within the scope of that waiver. Ruiz waived his

right to appeal any sentence not in excess of a sentence imposed

within the advisory Sentencing Guidelines range, and the

sentence imposed was within that range. Therefore, we grant the

Government’s motion to dismiss the appeal of Ruiz’s sentence.

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 In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. Accordingly, we affirm Ruiz’s conviction. 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 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.

DISMISSED IN PART;
AFFIRMED IN PART

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