UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4060
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDILVER ROJAS-GOMEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (7:10-cr-00058-H-1)
Submitted: September 22, 2011 Decided: November 4, 2011
Before WILKINSON, DAVIS, and WYNN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Ronald Cohen, 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Unpublished opinions are not binding precedent in this circuit.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:
Edilver Rojas-Gomez appeals his conviction, following
his guilty plea to being a felon in possession of firearms, in
violation of 18 U.S.C. §§ 922(g)(1), 924 (2006), and the
seventy-eight-month sentence he received. Rojas-Gomez’s
attorney filed his appellate brief pursuant to Anders v.
California, 386 U.S. 738 (1967), averring there are no
meritorious issues for appeal, but questioning the district
court’s calculation of Rojas-Gomez’s advisory Guidelines range.
In his pro se supplemental brief, Rojas-Gomez also challenges
the calculation of his sentencing range. The Government has
moved to dismiss the appeal of Rojas-Gomez’s sentence on the
basis of the waiver of appellate rights contained in Rojas-
Gomez’s plea agreement. For the reasons that follow, we grant
the Government’s motion to dismiss and dismiss the appeal of
Rojas-Gomez’s sentence, and we affirm his conviction.
We first conclude that Rojas-Gomez has waived his
right to appeal his sentence. A defendant may, in a valid plea
agreement, waive the right to appeal under 18 U.S.C. § 3742
(2006). United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.
1990). This court reviews the validity of an appellate waiver
de novo, and will enforce the waiver if it is valid and the
issue appealed is within the scope thereof. United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005).
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An appeal waiver is valid if the defendant knowingly
and intelligently agreed to the waiver. Id. at 169. To
determine whether a waiver is knowing and intelligent, this
court examines the background, experience, and conduct of the
defendant. United States v. Broughton-Jones, 71 F.3d 1143, 1146
(4th Cir. 1995). Based on the totality of circumstances in this
case, we conclude that Rojas-Gomez knowingly and intelligently
entered into the plea agreement and understood the waiver. See
United States v. General, 278 F.3d 389, 400 (4th Cir. 2002).
We further conclude Rojas-Gomez’s challenges to the
calculation of his advisory Guidelines range fall within the
scope of the waiver. According to the plea agreement, Rojas-
Gomez waived “the right to appeal whatever sentence is imposed,”
save for a sentence in excess of the Guidelines range determined
at sentencing. (J.A. 9). * The seventy-eight-month sentence
Rojas-Gomez received was within his Guidelines range.
Accordingly, we conclude the waiver bars appellate review of the
calculation of Rojas-Gomez’s Guidelines range, and thus grant
the Government’s motion to dismiss the appeal of Rojas-Gomez’s
sentence.
*
Citations to “J.A.” refer to the joint appendix submitted
by Appellant.
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The appellate waiver does not, however, preclude
appellate review of Rojas-Gomez’s conviction. Although no
challenge to Rojas-Gomez’s conviction is raised, because this
case is before us pursuant to Anders, we have reviewed the Fed.
R. Crim. P. 11 hearing and discern no infirmity in that
proceeding. Accordingly, we affirm Rojas-Gomez’s conviction.
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. We thus grant the Government’s motion to dismiss as
to Rojas-Gomez’s sentence and affirm Rojas-Gomez’s conviction.
This court requires that counsel inform Rojas-Gomez, in writing,
of the right to petition the Supreme Court of the United States
for further review. If Rojas-Gomez 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 Rojas-Gomez. 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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