United States v. De Paz-Lopez

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-5181

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

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Affirmed in part; dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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