United States v. Nunez

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4485

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

FERNANDO MIGUEL NUNEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
District Judge. (5:08-cr-00262-D-1)

Submitted: August 31, 2010 Decided: September 20, 2010

Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed in part, affirmed in part by unpublished per curiam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

Fernando Miguel Nunez, Appellant Pro Se. Anne Margaret Hayes,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Fernando Miguel Nunez appeals his conviction and

within-guidelines 365-month sentence imposed after he waived

indictment and pled guilty, pursuant to a written plea

agreement, to a criminal information charging possession with

intent to distribute more than 100 kilograms of marijuana, in

violation of 21 U.S.C. § 841(a)(1) (2006). After obtaining

leave to proceed on appeal pro se, Nunez filed a brief, claiming

his sentence is unreasonable. The Government filed a motion to

dismiss based on an appeal waiver provision in the plea

agreement. Nunez filed a response to the motion to dismiss,

presenting for the first time a claim that ineffective

assistance of counsel prevented him from knowingly and

intelligently waiving his right to appeal and places his appeal

outside of the scope of the waiver.

A defendant may, in a valid plea agreement, waive the

right to appeal under 18 U.S.C. § 3742 (2006). United States v.

Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). We review the

validity of an appellate waiver de novo, United States v. Brown,

232 F.3d 399, 402-03 (4th Cir. 2000), and will uphold a waiver

of appellate rights if the waiver is valid and the issue being

appealed is covered by the waiver. United States v. Blick, 408

F.3d 162, 168 (4th Cir. 2005).

2
The issues raised by Nunez in his pro se brief are

encompassed by the scope of the waiver provision in which Nunez

agreed to

waive knowingly and expressly the right to appeal
whatever sentence is imposed on any ground, . . .
reserving only the right to appeal from a sentence in
excess of the advisory Guideline range that is
established at sentencing . . . , excepting the
Defendant’s right to appeal based upon grounds of
ineffective assistance of counsel and prosecutorial
misconduct not known to the Defendant at the time of
the Defendant’s guilty plea.

Nunez’s claims of error in sentencing are foreclosed by the

express terms of the waiver, and we dismiss the appeal as to

those claims.

We conclude that Nunez’s claim of ineffective

assistance of counsel is not cognizable on direct appeal as

ineffective assistance does not conclusively appear on the

record. United States v. Richardson, 195 F.3d 192, 198 (4th

Cir. 1999). We therefore affirm Nunez’s conviction and dismiss

the appeal to extent Nunez seeks to challenge his 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.

DISMISSED IN PART;
AFFIRMED IN PART