UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4433
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ZEE ZEE ZELAZURRO,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:08-cr-01076-RBH-1)
Submitted: March 31, 2011 Decided: April 4, 2011
Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. Arthur Bradley Parham,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Zee Zee Zelazurro pled guilty to assaulting a
correctional officer. Pursuant to a stipulation in the plea
agreement under Fed. R. Crim. P. 11(c)(1)(C), the district court
sentenced Zelazurro to forty months in prison. On appeal,
Zelazurro’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which he asserts that there
are no meritorious issues for appeal, but questions whether
Zelazurro’s presentence report properly concluded that he was a
career offender. For the reasons that follow, we affirm in part
and dismiss in part.
We are without jurisdiction to address Zelazurro’s
claimed sentencing error. Under 18 U.S.C. § 3742(a)(1) and
(a)(2) (2006), a defendant may appeal when the sentence “was
imposed in violation of law [or] was imposed as a result of an
incorrect application of the sentencing guidelines.”
Subsections (a)(3) and (a)(4) permit an appeal of a sentence
that is greater than the Guidelines range or a sentence “imposed
for an offense for which there is no sentencing guideline and is
plainly unreasonable.” 18 U.S.C. § 3742(a)(3), (a)(4) (2006).
However, if, as here, a defendant has pled guilty pursuant to a
plea agreement that includes a specific sentence, he may only
pursue an appeal under subsections (a)(3) and (a)(4) when “the
sentence imposed is greater than the sentence set forth in such
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agreement.” 18 U.S.C. § 3742(c)(1) (2006). The district court
imposed a sentence of forty months, the exact term of
imprisonment specified in the plea agreement. Because the
sentence imposed was not greater than the stipulated sentence,
Zelazurro may appeal only pursuant to subsections (a)(1) and
(a)(2). We conclude that the issues he seeks to raise do not
fall within the parameters of § 3742(a)(1) or (a)(2).
First, Zelazurro’s sentence was not imposed in
violation of the law. Zelazurro faced a statutory maximum term
of eight years; there was no governing statutory minimum. The
forty month sentence imposed on Zelazurro is well below the
statutory maximum and therefore not in violation of the law.
Moreover, although Zelazurro challenges the application of the
Sentencing Guidelines as incorrect, where a sentence is imposed
pursuant to a Rule 11(c)(1)(C) plea agreement, the sentence is
contractual and not based upon the Guidelines. See United
States v. Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005).
Accordingly, application of § 3742 requires dismissal of
Zelazurro’s appeal of his sentence for lack of jurisdiction.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Zelazurro’s conviction and dismiss
the part of the appeal relating to his sentence. This court
requires that counsel inform Zelazurro, in writing, of the right
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to petition the Supreme Court of the United States for further
review. If Zelazurro 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 Zelazurro. 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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