UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5015
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANGEL ABEL GUZMAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District Judge. (6:09-cr-01068-HMH-3)
Submitted: November 21, 2011 Decided: December 8, 2011
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
C. Fredric Marcinak, III, SMITH MOORE LEATHERWOOD LLP,
Greenville, South Carolina, for Appellant. William N. Nettles,
United States Attorney, Andrew B. Moorman, Sr., Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Angel Abel Guzman pled guilty to possession with
intent to distribute and distribution of 5 grams or more of
methamphetamine in violation of 18 U.S.C.A. § 841(a), (b)(1)(B)
(West 1999 & Supp. 2011) (Count 5), and was sentenced to a term
of 108 months of imprisonment. In his plea agreement, Guzman
waived his right to appeal his conviction or sentence on any
ground, including the grounds listed in 18 U.S.C. § 3742 (2006),
excepting only claims of ineffective assistance of counsel and
prosecutorial misconduct. Guzman now seeks to appeal his
sentence on the ground that the district court miscalculated the
Guidelines range and declined to depart or vary below the
Guidelines range. The government asserts that the appeal should
be dismissed based on the waiver of appellate rights contained
in Guzman’s plea agreement. Guzman has filed various materials
comprising a pro se supplemental brief, in which he further
challenges his conviction and sentence. He also asserts that
both his trial and appellate attorneys rendered ineffective
assistance, and that the government breached the plea agreement.
For the reasons that follow, we dismiss the appeal to the extent
that Guzman challenges his conviction or sentence. With respect
to Guzman’s pro se claims of ineffective assistance and
prosecutorial misconduct, we affirm the judgment.
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Guzman only addresses the waiver in his reply brief.
He argues that it is not enforceable because the district court
failed to explain or discuss the waiver adequately with him at
the Fed. R. Crim. P. 11 hearing. In his pro se supplemental
brief, Guzman claims that (1) the waiver is unenforceable
because his education and knowledge of English and legal terms
is limited, thus suggesting that he did not knowingly waive his
appellate rights; and (2) because the district court advised him
after his sentence was imposed that he could appeal his
sentence, contrary to the terms of the plea agreement.
It is well settled that “a defendant may waive in a
valid plea agreement the right of appeal under 18 U.S.C.
§ 3742.” United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.
1990). Whether a defendant has effectively waived the right to
appeal is an issue of law that this court reviews de novo.
United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
Here, the record of the Rule 11 proceeding discloses that the
district court fully complied with the requirements of Rule 11
to ensure that the guilty plea was knowing and voluntary. The
record also establishes that Guzman waived his appeal rights
knowingly and intelligently. First, the waiver provision was
set out in detail in the plea agreement. Guzman informed the
district court that his attorney had gone over the plea
agreement with him, and that he understood it. Second, the
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court asked Guzman during the Rule 11 hearing whether he was
voluntarily giving up his right to appeal his conviction and
sentence and Guzman replied affirmatively. Although Guzman, a
citizen of Honduras, had only six years of formal education, he
took an active part in his sentencing, insisting that his
attorney raise certain issues, and made an articulate statement
to the court before sentence was imposed. We conclude that the
record establishes that his waiver was knowing and intelligent.
In his pro se supplemental brief, Guzman further
contends that the waiver is unenforceable because, after
imposing sentence, the district court told him he had the right
to appeal. Here Guzman relies on United States v. Mannigan, 592
F.3d 621 (4th Cir. 2010). However, in Mannigan, the district
court failed to address the waiver provision in the plea
agreement with the defendant at the Rule 11 proceeding.
Similarly, in United States v. Wood, 378 F.3d 342, 349 (4th Cir.
2004), on which Guzman also relies, the district court
mischaracterized a material term in the plea agreement at the
Rule 11 hearing and the government did not correct it.
By contrast, where the district court addressed the
waiver provision at the Rule 11 hearing, but told the defendant
after imposing sentence that he could appeal his sentence, the
Sixth Circuit held that the waiver was enforceable because the
district court lacked the power to modify the plea agreement.
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See United States v. Fleming, 239 F.3d 761, 764-65 (6th Cir.
2001) (rejecting the holding in United States v. Buchanan, 59
F.3d 914, 917 (9th Cir. 1995), that such a statement from the
court created an expectation of the ability to appeal, on which
the defendant should be able to rely). We find the reasoning in
Fleming persuasive and conclude that Guzman’s waiver is
enforceable. Therefore, we dismiss his appeal of his conviction
and sentence.
The waiver provision excepted claims of ineffective
assistance of counsel. Guzman claims that his trial attorney,
Jessica Salvini, was ineffective because she (1) promised that
he would be held responsible only for the methamphetamine he
distributed and would receive a two-year sentence; (2) refused
to argue at sentencing that he was not responsible for the
methamphetamine and cocaine found in the pickup truck; and (3)
failed to tell him that he would be held responsible for the
additional drugs. Guzman further claims that his appellate
attorney was ineffective in refusing claims he wished to raise
relating to his sentence, and made factual errors in the formal
brief.
Claims of ineffective assistance of counsel are
generally not cognizable on direct appeal. United States v.
Benton, 523 F.3d 424, 435 (4th Cir. 2008). Instead, to allow
for adequate development of the record, a defendant must bring
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his claims in a 28 U.S.C.A. § 2255 (West Supp. 2010) motion.
Id. However, this court can entertain such claims on direct
appeal if the record conclusively establishes ineffective
assistance. United States v. Richardson, 195 F.3d 192, 198 (4th
Cir. 1999). Our review of the record does not establish
conclusively that either Guzman’s trial or appellate attorney
has rendered ineffective assistance.
Finally, Guzman contends that the government breached
the plea agreement by agreeing that he would plead guilty only
to distribution of the 28 grams of methamphetamine he admitted
distributing, then urging the court at sentencing to hold him
responsible for the additional methamphetamine and cocaine
seized from the truck. He also claims that the government
deliberately led the district court to believe, wrongly, that
the additional drugs were seized from the vehicle he was riding
in at the time he and the others were arrested.
These claims are baseless. The plea agreement stated
that Guzman would plead guilty to a charge that he, Lopez and
Tejada-Martinez possessed 5 or more grams of methamphetamine
with the intent to distribute it. There was no agreement to
limit Guzman’s responsibility to 28 grams of methamphetamine.
At sentencing, the government explained the basis for the
recommended base offense level after Guzman’s objection. Both
defense counsel and the government clarified for the court where
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the additional drugs were found. On this record, we conclude
that the government did nothing that breached the plea
agreement.
We therefore dismiss Guzman’s appeal to the extent
that he challenges his conviction and sentence. With respect to
his claims of ineffective assistance and prosecutorial
misconduct, we find no error and affirm the judgment of the
district court. 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.
DISMISSED IN PART;
AFFIRMED IN PART
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