UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4220
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CANDELARIO GONZALEZ-RIVERA, a/k/a Juancho, a/k/a Juan David,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:10-cr-00070-RJC-DSC-1)
Submitted: March 29, 2012 Decided: April 2, 2012
Before WILKINSON, KING, and KEENAN, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
David G. Belser, BELSER & PARKE, P.A., Asheville, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Melissa L. Rikard, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Candelario Gonzalez-Rivera appeals the 150-month
sentence imposed following his guilty plea to conspiracy to
possess with intent to distribute heroin, in violation of 21
U.S.C. §§ 841(b)(1)(A), 846 (2006). In the plea agreement,
Gonzalez-Rivera agreed to waive his right to appeal his
conviction or sentence except for claims of ineffective
assistance of counsel or prosecutorial misconduct. Although the
district court sustained some of Gonzalez-Rivera’s objections to
the presentence report, it varied upward from the Sentencing
Guidelines range of 87 to 108 months’ imprisonment and sentenced
him to 150 months. On appeal, Gonzalez-Rivera argues his
sentence was procedurally and substantively unreasonable and
that the Government committed prosecutorial misconduct by
breaching the plea agreement. Relying on the waiver of
appellate rights in Gonzalez-Rivera’s plea agreement, the
Government urges the dismissal of this appeal. We affirm in
part and dismiss in part.
Gonzalez-Rivera first argues the district court erred
in determining the amount of drugs foreseeable to him and the
resulting Guidelines range. He further argues the sentence was
substantively unreasonable because the upward variance was not
warranted. A defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v. Poindexter,
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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 plea colloquy performed in accordance
with Fed. R. Crim. P. 11, the waiver is both valid and
enforceable. See United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005). The question of whether a defendant validly
waived his right to appeal is a question of law that this court
reviews de novo. United States v. Blick, 408 F.3d 162, 168 (4th
Cir. 2005).
After reviewing the record, we conclude that Gonzalez-
Rivera knowingly and voluntarily waived the right to appeal his
sentence, except claims of ineffective assistance of counsel or
prosecutorial misconduct, and that the magistrate judge fully
questioned him regarding the appeal waiver at the Fed. R. Crim.
P. 11 hearing. Accordingly, the waiver is valid and his claims
challenging the reasonableness of his sentence are foreclosed by
that waiver. Accordingly, we dismiss this portion of the
appeal.
Gonzalez-Rivera, however, claims he is entitled to
resentencing because the Government breached the plea agreement
by failing to recommend a sentence at the bottom of the
Guidelines range. He suggests the Government’s breach amounted
to prosecutorial misconduct, a claim not barred by the waiver.
Because Gonzalez-Rivera failed to raise this issue before the
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district court, we review for plain error. Puckett v. United
States, 556 U.S. 129, 133-34 (2009). To prevail on his claim
under this standard, Gonzalez-Rivera must demonstrate “that an
error occurred, that the error was plain, and that the error
affected his substantial rights.” United States v. Muhammad,
478 F.3d 247, 249 (4th Cir. 2007). He must also establish that
the error “was so obvious and substantial that failure to notice
and correct it affected the fairness, integrity or public
reputation of the judicial proceedings.” United States v.
McQueen, 108 F.3d 64, 66 (4th Cir. 1997) (internal quotation
marks and alteration omitted). The Government was obligated
under the plea agreement not to oppose a sentence at the bottom
of the Guidelines range. Our review of the record reveals no
breach of the agreement on this basis. Because Gonzalez-
Rivera’s prosecutorial misconduct claim is not barred by the
waiver, we affirm in this regard.
Accordingly, we affirm in part and dismiss in part.
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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