UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4546
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERTO FLORENCIO DELA CRUZ,
Defendant - Appellant.
No. 13-4627
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERTO FLORENCIO DELA CRUZ,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:12-cr-00362-NCT-3;
1:13-cr-00049-NCT-1)
Submitted: April 29, 2014 Decided: May 7, 2014
Before KING, SHEDD, and AGEE, Circuit Judges.
Dismissed in part, affirmed in part by unpublished per curiam
opinion.
Christopher F. Cowan, LAW OFFICE OF CHRIS F. COWAN, Columbus,
Ohio, for Appellant. Ripley Rand, United States Attorney,
Sandra J. Hairston, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Roberto Florencio Dela
Cruz appeals the fifty-eight month sentence imposed following
his guilty plea to conspiracy to distribute 100 kilograms or
more of marijuana, in violation of 21 U.S.C. § 846 (2012) (the
“marijuana conspiracy sentence,” or “Case No. 1:12-cr-00362”),
and the consecutive twenty-seven month sentence imposed for his
violation of the terms of his supervised release on a prior
conviction (the “revocation sentence,” or “Case No.
1:13-cr-00049”). On appeal, Dela Cruz raises numerous claims of
procedural and substantive sentencing error. He also asserts
that his counsel provided constitutionally ineffective
assistance at sentencing. The Government asks this court to
dismiss Dela Cruz’s appeal of the marijuana conspiracy sentence,
except as to his ineffective assistance claim, based on the
appellate waiver provision in his plea agreement. For the
reasons that follow, we dismiss the appeal of Case No.
1:12-cr-00362 in part and affirm as to all remaining issues.
I.
We review de novo “the validity and effect of an
appellate waiver.” United States v. Thornsbury, 670 F.3d 532,
537 (4th Cir. 2012). We will enforce an appellate waiver that
was entered knowingly and intelligently if the issue appealed
falls within the waiver’s scope. United States v. Poindexter,
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492 F.3d 263, 270 (4th Cir. 2007). Dela Cruz does not contest
the knowing and voluntary nature of his waiver.
“Plea bargains rest on contractual principles, and
each party should receive the benefit of its bargain.” United
States v. Blick, 408 F.3d 162, 173 (4th Cir. 2005) (internal
quotation marks omitted). However, “a defendant who waives his
right to appeal does not subject himself to being sentenced
entirely at the whim of the district court.” United States v.
Marin, 961 F.2d 493, 496 (4th Cir. 1992). Even where an
appellate waiver provision is valid, we will not enforce the
waiver to preclude “a few narrowly-construed errors” that fall
automatically outside its scope. United States v. Copeland, 707
F.3d 522, 530 (4th Cir.), cert. denied, 134 S. Ct. 126 (2013)
(internal quotation marks omitted). This “narrow class of
claims” encompasses those claims “the defendant could not have
reasonably contemplated when the plea agreement was executed.”
Poindexter, 492 F.3d at 270 (internal quotation marks omitted).
“[T]he type of ‘illegal’ sentence which a defendant can
successfully challenge despite an appeal waiver involves
fundamental issues, including claims that a district court
exceeded its authority, premised its sentence on a
constitutionally impermissible factor such as race, or violated
the post-plea right to counsel.” Copeland, 707 F.3d at 530
(internal quotation marks and alterations omitted).
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Dela Cruz asserts that the challenges he raises to his
marijuana conspiracy sentence are fundamental in character and
of a type that he could not have contemplated when he entered
his plea agreement. Additionally, he asserts, because the
sentencing proceedings he received were not part of the bargain
he reached with the Government, they fall outside the scope of
his appellate waiver.
We are not persuaded by these arguments. The fact
that Dela Cruz did not anticipate the specific sentencing errors
that he alleges does not preclude their valid waiver. An
appellate waiver remains valid as long as the defendant was
aware of the general consequences of waiving his appellate
rights, even if he did not know its “specific detailed
consequences.” See Thornsbury, 670 F.3d at 537 (emphasis and
internal quotation marks omitted). Nor do we find these errors
to be so “fundamental” in character as to be unwaivable. He
alleges neither a sentence wholly outside the court’s authority
nor constitutional defects in the sentencing process, but rather
prosaic sentencing errors that fall squarely within the scope of
his waiver.
Because we conclude Dela Cruz’s challenges to the
marijuana conspiracy sentence are within the waiver’s scope, we
dismiss Dela Cruz’s appeal of Case No. 1:12-cr-00362 in part.
Dela Cruz’s claim of ineffective assistance of counsel, which is
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exempted from the appellate waiver’s scope according to its
plain terms, will be addressed in Part III.
II.
Dela Cruz generally asserts that the district court
imposed a plainly unreasonable revocation sentence by running
the revocation sentence consecutively to the marijuana
conspiracy sentence. He specifically alleges the following
errors: the court’s apparent reliance on the wrong presentence
report during the sentencing hearing, its inadequate
consideration of the 18 U.S.C. § 3553(a) (2012) factors and
insufficient analysis of defense counsel’s arguments, the
court’s failure to explain its reasons for imposing a
consecutive sentence and its presumption that the Guidelines’
recommendation for a consecutive sentence would result in an
appropriate sentence, and a consecutive sentence greater than
necessary to satisfy the goals of sentencing.
In reviewing a sentence imposed following revocation
of supervised release, we “take[] a more deferential appellate
posture concerning issues of fact and the exercise of discretion
than reasonableness review for guidelines sentences.” United
States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007) (internal
quotation marks omitted). We will affirm a revocation sentence
if it is within the prescribed statutory range and not plainly
unreasonable. United States v. Webb, 738 F.3d 638, 640 (4th
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Cir. 2013). We engage in a two-step review process, first
considering whether the sentence is procedurally or
substantively unreasonable by applying the same principles
employed in review of original sentences. United States v.
Crudup, 461 F.3d 433, 438 (4th Cir. 2006). Only if we find the
sentence procedurally or substantively unreasonable must we
determine whether it is “plainly” so. Moulden, 478 F.3d at 657.
A revocation sentence is procedurally reasonable if
the district court has considered the applicable § 3553(a)
factors and the policy statements contained in Chapter Seven of
the Guidelines, Crudup, 461 F.3d at 440, and adequately
explained the chosen sentence, United States v. Thompson, 595
F.3d 544, 547 (4th Cir. 2010). A revocation sentence is
substantively reasonable if the district court stated a proper
basis for imposing that sentence. Crudup, 461 F.3d at 440.
Ultimately, the district court has broad discretion to revoke
supervised release and impose a sentence up to the statutory
maximum. Moulden, 478 F.3d at 657.
Where the sentencing court imposes multiple sentences
simultaneously, the court may order the terms to run
concurrently or consecutively. See 18 U.S.C. § 3584(a) (2012).
In electing between these options, the court is required to
consider the § 3553(a) factors “as to each offense for which a
term of imprisonment is being imposed.” Id. § 3584(b) (2012).
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The Guidelines state that any revocation sentence of
imprisonment “shall be ordered to be served consecutively to any
sentence of imprisonment that the defendant is serving.” U.S.
Sentencing Guidelines Manual (“USSG”) § 7B1.3(f), p.s. (2012);
see USSG § 7B1.3 cmt. n.4 (recommending “that any sentence of
imprisonment for a criminal offense that is imposed after
revocation of . . . supervised release be run consecutively to
any term of imprisonment imposed upon revocation”). “We
consider the commentary and policy statements set forth in the
Guidelines to be authoritative . . . to the extent that they are
not inconsistence with an applicable statute . . . .” United
States v. Medina-Campo, 714 F.3d 232, 237 n.4 (4th Cir.), cert.
denied, 134 S. Ct. 280 (2013).
In announcing a sentence, “the district court need not
robotically tick through § 3553(a)’s every subsection” but “must
place on the record an individualized assessment” of the
defendant that “provide[s] a rationale tailored to the
particular case at hand and adequate to permit meaningful
appellate review.” United States v. Carter, 564 F.3d 325,
329-30 (4th Cir. 2009) (internal quotation marks omitted). A
court imposing a revocation sentence need not provide as
detailed an explanation as that required in imposing an original
sentence, but it “still must provide a statement of reasons for
the sentence imposed.” Thompson, 595 F.3d at 547 (internal
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quotation marks omitted). The court’s explanation must be
sufficient “to satisfy an appellate court that it has considered
the parties’ arguments and has a reasoned basis for exercising
its own legal decisionmaking authority in light of § 3553(a).”
United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir.
2010) (internal quotation marks and alterations omitted).
We have thoroughly reviewed the record and find Dela
Cruz’s challenges unavailing. First, the record establishes
that the district court relied on the correct presentence report
in sentencing Dela Cruz. Although the court made reference to
an incorrect report when describing the applicable Guidelines
range, the error was noted and the correct range was quickly
established. Further, the sentencing transcript amply
demonstrates the court’s familiarity with Dela Cruz’s
presentence report and its use in determining his sentence. Nor
do we find error in the court’s analysis and explanation of the
sentence. While the court did not provide an explicit analysis
of its reasons for imposing a consecutive revocation sentence,
the court’s statements to both counsel and Dela Cruz indicated
that it was familiar with his history and characteristics and
considered those factors in sentencing him. Counsel readily
conceded that requests for concurrent revocation sentences are
“rarely granted” and provided no additional argument to justify
such a request. Ultimately, we find the court’s explanation
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adequate to demonstrate its consideration of the relevant
§ 3553(a) factors and counsel’s salient arguments, as well as a
sufficiently individualized assessment to support the revocation
sentence.
Although sentencing court may not “presume that the
appropriate sentence in a given case will come from the
Guidelines,” Mendoza-Mendoza, 597 F.3d at 216 (citing Rita v.
United States, 551 U.S. 338, 351 (2007)), we discern no Rita
error in this case. The record demonstrates that the court
fully understood its authority to impose concurrent sentences
but simply exercised its discretion not to do so. Nor has Dela
Cruz met his burden to establish that the within-Guidelines
revocation sentence is substantively unreasonable, even when run
consecutively to the marijuana conspiracy sentence. See United
States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012) (recognizing
that this court presumes within-Guidelines sentence is
reasonable). We therefore find no error, plain or otherwise, in
Dela Cruz’s revocation sentence. Thus, we affirm the sentence
imposed in Case No. 1:13-cr-00049.
III.
Dela Cruz asserts that his counsel was ineffective in
failing to argue for a mitigating role adjustment to his
Guidelines range, pursuant to USSG § 3B1.2. To establish a
claim of ineffective assistance of counsel, the defendant must
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show (1) that counsel’s performance fell below an objective
standard of reasonableness in light of prevailing professional
norms, and (2) that the deficient performance was prejudicial.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Claims of
ineffective assistance of counsel are not cognizable on direct
appeal unless the lawyer’s ineffectiveness appears conclusively
on the record. United States v. Powell, 680 F.3d 350, 359 (4th
Cir. 2012). Because ineffective assistance does not
conclusively appear on the record before us, we decline to
address Dela Cruz’s ineffective assistance claim at this
juncture, without prejudice to his ability to raise this issue
in a 28 U.S.C. § 2255 (2012) motion.
IV.
Accordingly, we dismiss Dela Cruz’s appeal of his
marijuana conspiracy sentence in Case No. 1:12-cr-00362, affirm
his criminal judgment in Case No. 1:12-cr-00362 as to all
remaining issues, and affirm the judgment in Case No.
1:13-cr-00049. Although we grant Dela Cruz’s motion to file an
addendum to his reply brief, we are unpersuaded by his argument
as to its significance. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
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materials before this court and argument would not aid the
decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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