UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4033
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
OSCIEL GARCIA ESTRADA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:11-cr-00123-F-1)
Submitted: August 8, 2013 Decided: August 16, 2013
Before WILKINSON, MOTZ, and AGEE, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
C. Burell Shella, SHELLA, HARRIS & AUS, PC, Durham, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Osciel Garcia Estrada pleaded guilty to conspiracy to
possess with intent to distribute cocaine, in violation of 21
U.S.C. § 846 (2006). The district court sentenced Estrada to
140 months of imprisonment and he now appeals. Appellate
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), questioning whether Estrada’s sentence is
reasonable. Estrada filed a pro se supplemental brief raising
additional sentencing issues. In addition, the Government has
filed a motion to dismiss the appeal based on the waiver in the
plea agreement. For the reasons that follow, we affirm the
conviction and dismiss Estrada’s appeal of his sentence.
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, 53 (4th Cir. 1990). A waiver
will preclude appeal of a specific issue if the waiver is valid
and the issue is within the scope of the waiver. United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). The
question of whether a defendant validly waived his right to
appeal is a question of law that this court reviews de novo.
Id. at 168.
“The validity of an appeal waiver depends on whether
the defendant knowingly and intelligently agreed to waive the
right to appeal.” Id. at 169 (citation omitted). To determine
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whether a waiver is knowing and intelligent, we examine “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 fully 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).
In addition, the purpose of the Fed. R. Crim. P. 11
colloquy is to ensure that the plea of guilt is entered into
knowingly and voluntarily. See United States v. Vonn, 535 U.S.
55, 58 (2002). Accordingly, prior to accepting a guilty plea, a
trial court, through colloquy with the defendant, must inform
the defendant of, and determine that he understands, the nature
of the charges to which the plea is offered, any mandatory
minimum penalty, the maximum possible penalty he faces, and the
various rights he is relinquishing by pleading guilty. Fed. R.
Crim. P. 11(b). The court also must determine whether there is
a factual basis for the plea. Id.; United States v. DeFusco,
949 F.2d 114, 120 (4th Cir. 1991).
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We have thoroughly reviewed the record and conclude
that the district court fully complied with the requirements of
Rule 11. We further conclude that Estrada’s guilty plea and
waiver of his appellate rights was knowing, intelligent, and
voluntary. The appellate waiver included Estrada’s right to
appeal any sentence imposed, except a sentence above the
advisory Guidelines range. Here, the district court sentenced
Estrada within the advisory Guidelines range and, therefore, he
has waived appellate review of his sentence.
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. Accordingly, we affirm the conviction, grant the
Government’s motion to dismiss in part, and dismiss Estrada’s
appeal of his sentence. This court requires that counsel inform
Estrada, in writing, of the right to petition the Supreme Court
of the United States for further review. If Estrada requests
that a petition be filed, but counsel believes that such a
petition would be frivolous, then counsel may move in this court
for leave to withdraw from representation. Counsel’s motion
must state that a copy thereof was served on Estrada. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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