UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5181
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE FIDEL DE PAZ-LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:09-cr-00014-CCB-2)
Submitted: January 26, 2011 Decided: February 24, 2011
Before MOTZ, KEENAN, and WYNN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
A. D. Martin, LAW OFFICE OF ANTHONY D. MARTIN, Greenbelt,
Maryland, for Appellant. Judson T. Mihok, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Fidel de Paz-Lopez appeals his convictions and
114-month sentence imposed following his guilty plea, pursuant
to a written plea agreement, to one count of conspiracy to
interfere with commerce by robbery, in violation of 18 U.S.C.
§ 1951 (2006); and use of a firearm in furtherance of a crime of
violence and aiding and abetting, in violation of 18 U.S.C.
§§ 924, 2 (2006). The district court sentenced Paz-Lopez to
thirty months’ imprisonment on the robbery conspiracy, plus
eighty-four consecutive months’ imprisonment on the firearms
count.
Counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious grounds for appeal, but alleging the Government
acted in bad faith by failing to debrief Paz-Lopez and to
consider a downward departure pursuant to U.S. Sentencing
Guidelines Manual § 5K1.1 (2006). The Government has filed a
motion to dismiss the appeal on the basis that Paz-Lopez
explicitly waived his right to appeal his sentence in the plea
agreement. Paz-Lopez opposes the motion, contending that he did
not knowingly agree to the waiver, and that even if the waiver
is valid, the Government’s bad faith refusal to provide him an
opportunity to cooperate is a claim beyond the scope of the
waiver. Paz-Lopez filed a pro se supplemental brief also
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challenging the Government’s failure to debrief him and move for
a downward departure based on substantial assistance. Paz-Lopez
also contends counsel rendered ineffective assistance by failing
to explain the consequences of his plea.
We review the validity of a waiver de novo. 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, 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 a district court fully
questions a defendant regarding the waiver of appellate rights
during the Fed. R. Crim. P. 11 colloquy, the waiver is valid and
enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th
Cir. 2005).
At the plea hearing, the district court fully complied
with Fed. R. Crim. P. 11, and specifically ensured that Paz-
Lopez understood and agreed to the appellate waiver provision.
Accordingly, we find that Paz-Lopez knowingly and voluntarily
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entered his guilty plea and that his appellate waiver was also
knowing and voluntary.
We will enforce a valid waiver so long as “the issue
being appealed is within the scope of the waiver.” Blick, 408
F.3d at 168. Paz-Lopez explicitly waived his “right to appeal
any sentence within or below the advisory guidelines range
resulting from an adjusted offense level of 19, with a seven
year consecutive sentence. . . .” Thus, Paz-Lopez’s appeal of
his within-guidelines sentence resulting from his adjusted
offense level of nineteen falls within the scope of that waiver.
Accordingly, we grant in part the Government’s motion to dismiss
the appeal.
The appellate waiver does not, however, foreclose a
claim of ineffective assistance of trial counsel. Johnson, 410
F.3d at 151. Nor does it preclude our Anders review of the
integrity of the Rule 11 proceeding. Therefore, we deny in part
the Government’s motion to dismiss the appeal. A defendant may
raise a claim of ineffective assistance of counsel “on direct
appeal if and only if it conclusively appears from the record
that his counsel did not provide effective assistance.” United
States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998). We find
that the record does not conclusively establish that trial
counsel’s assistance fell below an objective standard of
reasonableness. Accordingly, we decline to consider this claim
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on direct appeal. Finally, to the extent Paz-Lopez claims that
the Government breached the plea agreement and acted in bad
faith in declining the opportunity for him to cooperate and
perhaps earn a reduction in his sentence, we conclude these
claims are squarely contradicted by the record. Wade v. United
States, 504 U.S. 181, 184-87 (1992).
In accordance with Anders, we have reviewed the entire
record in the case and have found no meritorious issues for
appeal outside the scope of the appellate waiver. We therefore
affirm Paz-Lopez’s convictions and dismiss the appeal of his
sentence. This court requires that counsel inform Paz-Lopez, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Paz-Lopez 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 Paz-Lopez.
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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