UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4150
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JORGE NOEL SAGASTUME, a/k/a Jorge Noel Sagastume-Perez,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:14-cr-00137-PJM-1)
Submitted: October 29, 2015 Decided: November 18, 2015
Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Megan E. Coleman, MARCUSBONSIB, LLC, Greenbelt, Maryland, for
Appellant. Kelly O. Hayes, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jorge Noel Sagastume appeals his conviction and 65-month
sentence imposed following his guilty plea to conspiracy to
distribute and possess with intent to distribute 500 grams or
more of cocaine, in violation of 21 U.S.C. § 846 (2012). On
appeal, counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), stating that there are no meritorious
grounds for appeal, but setting forth arguments challenging the
validity of Sagastume’s guilty plea. The Government has filed a
motion to dismiss the appeal on the ground that Sagastume
explicitly waived his right to appeal his conviction and
sentence in the plea agreement. Although advised of his right
to do so, Sagastume has not filed a pro se supplemental brief.
For the reasons that follow, we affirm in part and dismiss in
part.
A criminal defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v. Poindexter,
492 F.3d 263, 270 (4th Cir. 2007). Generally, if the district
court fully questions a defendant regarding the waiver of his
right to appeal during the Fed. R. Crim. P. 11 colloquy and a
review of the record reveals that the defendant understood the
full import of the waiver, the waiver is both valid and
enforceable. United States v. Copeland, 707 F.3d 522, 528 (4th
Cir. 2013 (2013). “The law ordinarily considers a waiver
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knowing, intelligent, and sufficiently aware if the defendant
fully understands the nature of the right and how it would
likely apply in general in the circumstances — even though the
defendant may not know the specific detailed consequences of
invoking it.” United States v. Thornsbury, 670 F.3d 532, 537
(4th Cir. 2012) (internal alteration, quotation marks, and
emphases omitted). Whether a defendant validly waived his right
to appeal is a question of law we review de novo. United States
v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
Our review of the record leads us to conclude that
Sagastume knowingly and voluntarily waived his right to appeal
his conviction and sentence. Thus, review of any claims raised
by Sagastume that fall within the scope of his broad waiver is
barred.
On appeal, counsel questions the validity of Sagastume’s
guilty plea. Specifically, he questions whether the district
court adequately complied with the mandates of Rule 11 in
accepting Sagastume’s guilty plea and whether the district court
erred in failing to withdraw his guilty plea when Sagastume
stated during sentencing that he was not aware that a mandatory
minimum five years sentence would be imposed and that his
attorney had informed him that Sagastume could receive a
sentence as low as three years’ imprisonment.
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Sagastume’s appellate waiver does not foreclose a challenge
to the voluntariness of his plea. See, e.g., United States v.
Attar, 38 F.3d 727, 732–33 & n.2 (4th Cir. 1994) (applying
rule). Because Sagastume did not move to withdraw his plea, we
review his Rule 11 hearing for plain error. Henderson v. United
States, 133 S. Ct. 1121, 1126-27 (2013); United States v.
Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (discussing
standard). In the guilty plea context, a defendant demonstrates
that an error affected his substantial rights by “show[ing] a
reasonable probability that, but for the error, he would not
have entered the plea.” United States v. Massenburg, 564 F.3d
337, 343 (4th Cir. 2009) (internal quotation marks omitted). We
conclude that none of these claims are colorable.
The Rule 11 hearing contained three omissions. The
district court failed to inform Sagastume: (1) that false
statements under oath could result in his prosecution for
perjury; (2) that the court could order restitution, and (3)
that the court would consider the 18 U.S.C. § 3553(a) (2012)
factors in fashioning his sentence. Having reviewed the record,
however, we conclude that the court’s failure to discuss these
three things did not affect Sagastume’s substantial rights, and
there is no indication that Sagastume would not have pled guilty
had the district court’s plea colloquy been more exacting. See
Massenburg, 564 F.3d at 343.
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Sagastume’s last challenge to the knowing nature of his
plea sounds in ineffective assistance. Specifically, he claims
that the district court should have allowed him to withdraw his
plea when he informed the court at sentencing that he was
unaware of the statutory mandatory minimum of five years and
that counsel had informed him that he could receive a sentence
as low as three years’ imprisonment. Unless an attorney’s
ineffectiveness conclusively appears on the face of the record,
ineffective assistance claims are not generally addressed on
direct appeal. United States v. Galloway, 749 F.3d 238, 241
(4th Cir.), cert. denied, 135 S. Ct. 215 (2015). Instead, such
claims should be raised in a motion brought pursuant to 28
U.S.C. § 2255 (2012), in order to permit sufficient development
of the record. United States v. Baptiste, 596 F.3d 214, 216 n.1
(4th Cir. 2010).
Here, Sagastume’s assertion that he was not made aware of
the statutory mandatory minimum of five years is simply belied
by his statements at the Rule 11 hearing and the plea agreement
he knowingly signed. Furthermore, because the record does not
conclusively establish ineffective assistance of counsel, see
Strickland v. Washington, 466 U.S. 668, 687-88 (1984), we
decline to review these claims on direct appeal.
In accordance with Anders, we have reviewed the entire
record in the case and have found no meritorious issues for
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appeal outside the scope of the appellate waiver. Accordingly,
we grant the Government’s motion to dismiss Sagastume’s appeal
of his sentence and affirm his conviction. This court requires
that counsel inform Sagastume, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Sagastume 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 Sagastume. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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