UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4973
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OMAR GUERRA, a/k/a Potato,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Margaret B. Seymour, District
Judge. (3:07-cr-00600-MBS-4)
Submitted: October 21, 2010 Decided: November 10, 2010
Before WILKINSON, KING, and DAVIS, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
James A. Brown, Jr., LAW OFFICES OF JAMES A. BROWN, JR., PA,
Beaufort, South Carolina, for Appellant. Mark C. Moore,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Omar Guerra pled guilty, pursuant to a plea agreement,
to conspiracy to possess with the intent to distribute and to
distribute 1000 kilograms or more of marijuana, in violation of
21 U.S.C. § 846 (2006). Prior to sentencing, Guerra filed
several pro se motions to withdraw his guilty plea, which the
district court denied. The court sentenced Guerra to 360
months’ imprisonment. On appeal, Guerra’s counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), in
which he examines whether the district court erred in denying
Guerra’s motions to withdraw his guilty plea and concludes that
there are no meritorious issues for appeal. The Government has
moved to dismiss Guerra’s appeal as barred by the appellate
waiver clause in his plea agreement. Neither Guerra nor his
counsel has challenged directly the substance of the
Government’s motion; however, Guerra has filed a pro se brief,
in which he maintains that his plea was not knowing and
voluntary and that the Government breached the plea agreement.
We affirm in part and dismiss in part.
Guerra argues that the Government breached the terms
of his plea agreement by failing to move for a downward
departure based on his substantial assistance. Although a
breach of a plea agreement by the Government can invalidate an
appellate waiver, see generally Santobello v. New York, 404 U.S.
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257, 262 (1971), “no party is obligated to provide more than is
specified in the agreement itself.” United States v. Peglera,
33 F.3d 412, 413 (4th Cir. 1994) (citations omitted). In other
words, “the government is held only to those promises that it
actually made.” Id. Our review of the record leads us to
conclude that the Government did not breach either the spirit or
the letter of its bargain with Guerra. See id.
Turning to the validity of the plea and the appellate
waiver, counsel identifies no error in the plea colloquy, but
Guerra asserts in his pro se supplemental brief that he did not
knowingly and voluntarily enter his guilty plea. Because Guerra
moved in the district court to withdraw his guilty plea on this
ground, “we review the voluntariness of a guilty plea de novo.”
United States v. General, 278 F.3d 389, 393 (4th Cir. 2002).
Our review of the record reveals that the district court
complied with the requirements of Fed. R. Crim. P. 11 in
accepting Guerra’s guilty plea.
Guerra asserts, however, that his plea was not
voluntary because a federal agent told him he would suffer
consequences if he did not sign the plea agreement offered by
the Government. We conclude that Guerra’s self-serving
statements, even if accurate, do not rise to the level of clear
and convincing proof that his plea was induced by coercion or
intimidation. See Fields v. Att’y Gen., 956 F.2d 1290, 1299
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(4th Cir. 1992). Moreover, the district court properly ensured
that Guerra’s guilty plea was knowing and voluntary and
supported by a sufficient factual basis. See United States v.
DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991).
Having concluded that Guerra voluntarily entered his
guilty plea, we next must address the Government’s assertion
that he validly waived the right to appeal his conviction and
sentence. This court reviews the validity of a 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). A
waiver is valid if the defendant’s agreement to the waiver was
knowing and voluntary. United States v. Marin, 961 F.2d 493,
496 (4th Cir. 1992); United States v. Wessells, 936 F.2d 165,
167 (4th Cir. 1991). 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.” General, 278
F.3d at 400 (internal quotation marks omitted).
Neither Guerra nor his attorney alleges that the
district court committed any error at Guerra’s plea colloquy.
Guerra, however, asserts in his pro se brief that his plea and
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waiver were involuntary. As discussed above, Guerra’s claim
that the agent impermissibly coerced him is belied by the
record.
With regard to whether the district court adequately
questioned Guerra about the waiver provision, “a waiver is not
knowingly or voluntarily made if the district court fails to
specifically question the defendant concerning the waiver
provision . . . during the Rule 11 colloquy and the record
indicates that the defendant did not otherwise understand the
full significance of the waiver.” United States v. Manigan, 592
F.3d 621, 627 (4th Cir. 2010). In light of the totality of the
circumstances, we hold that Guerra validly waived the right to
appeal his sentence. Because any sentencing issues that may be
revealed pursuant to our review under Anders are barred, we
grant the Government’s motion to dismiss in part and dismiss
Guerra’s appeal to the extent it relates to his sentence.
Turning to the validity of Guerra’s waiver of the
right to appeal his conviction or to raise claims of ineffective
assistance of counsel or prosecutorial misconduct on direct
appeal, we hold that the written waiver should not be enforced.
In its summary of the plea agreement, the Government did not
mention Guerra’s waiver of the right to appeal his conviction
and, in fact, misstated that the exception to the waiver
provision for claims of ineffective assistance of counsel and
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prosecutorial misconduct applied only to post-conviction
actions. We therefore deny the Government’s motion to dismiss
in part and address Guerra’s claims that the district court
erred in denying his motions to withdraw his guilty plea and
that his attorney was ineffective.
As to Guerra’s counsel’s argument that the district
court erred by denying Guerra’s motions to withdraw his guilty
plea, we initially note that withdrawal of a guilty plea is not
a matter of right. United States v. Ubakanma, 215 F.3d 421, 424
(4th Cir. 2000). The defendant bears the burden of showing a
“fair and just reason” for the withdrawal of his guilty plea.
Fed. R. Crim. P. 11(d)(2)(B). “[A] ‘fair and just’ reason . . .
is one that essentially challenges . . . the fairness of the
Rule 11 proceeding . . . .” United States v. Lambey, 974 F.2d
1389, 1394 (4th Cir. 1992) (en banc).
Courts consider six factors in determining whether to
permit the withdrawal of a guilty plea. See Ubakanma, 215 F.3d
at 424 (discussing factors). For ineffective assistance of
counsel to constitute a fair and just reason to withdraw a
guilty plea, it must be of constitutional magnitude. Lambey,
974 F.2d at 1394; see United States v. Dyess, 478 F.3d 224, 237
(4th Cir. 2007) (setting forth standard for withdrawal of plea
based upon ineffective assistance of counsel). With these
standards in mind, we conclude that Guerra failed to demonstrate
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ineffective assistance sufficient to warrant withdrawal of his
plea and hold that the district court did not abuse its
discretion by denying Guerra’s motions to withdraw his guilty
plea. See Dyess, 478 F.3d at 237 (stating standard of review).
Finally, in his pro se brief, Guerra argues that his
trial counsel was ineffective simply because he allowed Guerra
to plead guilty in the first place. To the extent this claim is
unrelated to the motion to withdraw, we cannot take cognizance
of it on direct appeal because neither counsel’s error nor
prejudice to Guerra are conclusively apparent on the record.
See United States v. Baldovinos, 434 F.3d 223, 239 (4th Cir.
2006) (providing standard).
Pursuant to Anders, we have reviewed the record for
any other meritorious claims that might fall outside the scope
of the enforceable portion of Guerra’s appellate waiver and have
found none. Accord United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005) (discussing grounds for appeal not covered by
plea bargain appellate waivers). Accordingly, we grant the
Government’s motion to dismiss in part and dismiss the appeal of
Guerra’s sentence, and we deny the Government’s motion to
dismiss in part and affirm the conviction.
This court requires that counsel inform Guerra, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Guerra requests that a
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petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may renew his motion for leave
to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on Guerra. 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.
AFFIRMED IN PART;
DISMISSED IN PART
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