UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4366
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NOE MOLINA BENITEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:07-cr-00136-F-1)
Submitted: January 12, 2011 Decided: February 8, 2011
Before GREGORY, SHEDD, and WYNN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton,
North Carolina, for Appellant. William E. H. Creech, OFFICE OF
THE UNITED STATES ATTORNEY, Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Noe Molina Benitez pleaded guilty to conspiracy to
possess with intent to distribute methamphetamine, in violation
of 21 U.S.C. § 846 (2006), and distribution of methamphetamine,
in violation of 21 U.S.C. § 841(a) (2006). The district court
sentenced Benitez to a total of 150 months of imprisonment and
Benitez now appeals. His attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), raising sentencing
issues but stating that there are no meritorious issues for
appeal. Benitez was informed of his right to file a pro se
supplemental brief, but did not do so. The Government has filed
a motion to dismiss Benitez’s appeal of his sentence based on
Benitez’s waiver of his right to appeal. For the reasons that
follow, we dismiss the appeal of Benitez’s sentence and affirm
his conviction.
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). This court reviews
the validity of an appellate waiver de novo, and will enforce
the waiver if it is valid and the issue appealed is within the
scope thereof. United States v. Blick, 408 F.3d 162, 168 (4th
Cir. 2005).
An appeal waiver is valid if the defendant knowingly
and intelligently agreed to the waiver. Id. at 169. To
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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 fully questions a defendant
regarding the waiver of his right to appeal during the Fed. R.
Crim. P. 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 thoroughly reviewed the record and conclude that Benitez
knowingly and intelligently entered into the plea agreement and
that the agreement waived Benitez’s right to appeal his sentence
under the circumstances presented.
Accordingly, because we conclude the appellate waiver
was valid and bars Benitez from appealing his 150-month
sentence, we grant the Government’s motion to dismiss the appeal
to the extent it seeks appellate review of Benitez’s sentence.
We have examined the entire record in accordance with the
requirements of Anders and have found no meritorious issues for
appeal. We therefore affirm Benitez’s conviction.
This court requires that counsel inform Benitez, in
writing, of the right to petition the Supreme Court of the
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United States for further review. If Benitez 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 Benitez. 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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