UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4812
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUIS ALBERTO BECERRA, a/k/a Flaco, a/k/a Luis Alberto
Billeda Becerra, a/k/a Luis Avilleda Becerra, a/k/a Luis
Garcia Munoz,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever, III,
District Judge. (7:09-cr-00079-D-1)
Submitted: April 29, 2011 Decided: June 2, 2011
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part and affirmed in part by unpublished per curiam
opinion.
Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luis Alberto Becerra pled guilty, pursuant to a
written plea agreement, to conspiracy to possess with intent to
distribute 500 grams or more of cocaine powder, and fifty grams
or more of cocaine base, in violation of 21 U.S.C. §§ 841(a),
846 (2006). Becerra was sentenced to 120 months in prison.
On appeal, Becerra’s counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that, in his opinion, there are no meritorious issues for
appeal, but questioning whether Becerra’s guilty plea was
knowing and voluntary. Counsel argues that Becerra’s guilty
plea to the count of the indictment charging him with conspiracy
to possess with intent to distribute cocaine base was invalid.
Counsel concedes, however, that Becerra’s plea to the portion of
the same count concerning cocaine powder was valid. Counsel
appears to bifurcate the two substances charged in the same
count into two separate and distinct charges, and claims that
Becerra’s plea was valid as to one but not to the other.
Accordingly, counsel argues that Becerra should have been
subject to a mandatory minimum of only sixty months’
imprisonment for pleading guilty to conspiring to distribute
cocaine powder pursuant to 21 U.S.C § 841(b)(1)(B), rather than
the 120-month mandatory minimum sentence imposed pursuant to 21
U.S.C. § 841(b)(1)(A).
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The Government filed a motion to dismiss the appeal
based on the appellate waiver in the plea agreement, arguing
that Becerra knowingly and voluntarily waived his right to
appeal his sentence, and the issue he seeks to raise on appeal
falls within the scope of the waiver. Becerra’s counsel
responded, acknowledging that Becerra’s waiver is valid, but
arguing that, because this is an Anders appeal, this appeal is
outside the scope of the waiver. Becerra was informed of his
right to file a pro se supplemental brief, but has not done so.
We review de novo the question of “whether a defendant
has waived his right of appeal in connection with a plea
proceeding.” United States v. Manigan, 592 F.3d 621, 626 (4th
Cir. 2010) (internal quotation marks omitted). Where the
government seeks to enforce an appeal waiver and the appellant
does not contend that the government is in breach of the plea
agreement, a waiver will be enforced if the record shows the
waiver is valid and the challenged issue falls within the scope
of the waiver. United States v. Blick, 408 F.3d 162, 168 (4th
Cir. 2005). An appeal waiver is valid if it is “the result of a
knowing and intelligent decision to forgo the right to appeal.”
United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir.
1995) (internal quotation marks omitted).
Our review of the record leads us to conclude that
Becerra validly waived the right to appeal his sentence, and has
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thus waived review of the sentencing issue he raises and any
sentencing error that may be revealed pursuant to our Anders
review. Thus, we grant the Government’s motion to dismiss the
appeal in part as it pertains to Becerra’s sentence.
The waiver provision does not, however, preclude
Becerra’s appeal of his conviction. Accordingly, we deny the
motion to dismiss as it pertains to Becerra’s conviction.
Because Becerra did not move in the district court to withdraw
his guilty plea, the Rule 11 hearing is reviewed for plain
error. United States v. Martinez, 277 F.3d 517, 525 (4th Cir.
2002). “To establish plain error, [Becerra] must show that an
error occurred, that the error was plain, and the error affected
his substantial rights.” United States v. Muhammad, 478 F.3d
247, 249 (4th Cir. 2007). Even if Becerra makes this three-part
showing, this Court may exercise its discretion to correct the
error only if it “seriously affects the fairness, integrity or
public reputation of judicial proceedings.” United States v.
Lynn, 592 F.3d 572, 577 (4th Cir. 2010) (internal quotation
marks omitted).
Prior to accepting a guilty plea, the district court,
through colloquy with the defendant in open court, must inform
the defendant of, and determine that the defendant understands
the nature of the charges to which the plea is offered, any
mandatory minimum penalty, the maximum possible penalty he
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faces, and the various rights he is relinquishing by pleading
guilty. Fed. R. Crim. P. 11(b). The court must also ascertain
that the plea is voluntary. Fed. R. Crim. P. 11(b)(2). In
addition, “[b]efore entering judgment on a guilty plea, the
court must determine that there is a factual basis for the
plea.” Fed. R. Crim. P. 11(b)(3). Our review of the record
leads us to conclude that the district court complied with the
Rule 11 requirements, and Becerra’s guilty plea was knowing and
voluntary and supported by an adequate factual basis.
In accordance with Anders, we have reviewed the entire
record and have found no unwaived and potentially meritorious
issues for review. Accordingly, while we grant the Government’s
motion to dismiss in part, we affirm Becerra’s conviction. This
court requires that counsel inform Becerra in writing of his
right to petition the Supreme Court of the United States for
further review. If Becerra 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 Becerra.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
DISMISSED IN PART;
AFFIRMED IN PART
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