UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4485
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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Dismissed in part, affirmed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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).
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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
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