UNPUBLISHED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Dismissed in part; affirmed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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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