United States v. Eduardo Rivera

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4718

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

EDUARDO RIVERA, a/k/a Mauricio Rodriguez, a/k/a Hector
Almodovar Valentin, a/k/a Daniel Eduardo Rivera,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:11-cr-00012-WDQ-1)

Submitted: April 19, 2012 Decided: April 24, 2012

Before NIEMEYER, SHEDD, and FLOYD, Circuit Judges.

Affirmed in part, dismissed in part by unpublished per curiam
opinion.

James Wyda, Federal Public Defender, Joanna Silver, Staff
Attorney, Baltimore, Maryland, for Appellant. Gregory Robert
Bockin, Assistant United States Attorney, Baltimore, Maryland,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Eduardo Rivera pled guilty to one count of false

statement in applying for and using a passport, in violation of

18 U.S.C. § 1542 (2006), and one count of aggravated identity

theft, in violation of 18 U.S.C. § 1028A(a)(1), (c)(2), (c)(11)

(2006), and was sentenced to two years and one day of

imprisonment. Rivera noted a timely appeal. His counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), conceding that there are no meritorious issues for

appeal, but questioning the voluntariness of Rivera’s guilty

plea. Rivera, informed of his right to file a pro se

supplemental brief, has not done so. The Government has moved

to dismiss the appeal in part pursuant to the waiver of

appellate review contained in the plea agreement. We grant the

motion for partial dismissal, affirm Rivera’s conviction, and

dismiss his appeal of issues within the scope of the appellate

waiver.

We review de novo the validity of a defendant’s waiver

of appellate rights. United States v. Blick, 408 F.3d 162, 168

(4th Cir. 2005). “A defendant may waive his right to appeal if

that waiver is the result of a knowing and intelligent decision

to forgo the right to appeal.” United States v. Amaya-Portillo,

423 F.3d 427, 430 (4th Cir. 2005) (internal quotation marks

omitted). To determine whether the waiver is knowing and

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intelligent, we look to “the totality of the circumstances,

including the experience and conduct of the accused, as well as

the accused’s educational background and familiarity with the

terms of the plea agreement.” United States v. General, 278

F.3d 389, 400 (4th Cir. 2002) (internal quotation marks

omitted). We will enforce a valid waiver as to issues that are

within the scope of the waiver. Blick, 408 F.3d at 168.

Here, the plea agreement waived Rivera’s right to

appeal his conviction. Further, both parties agreed to waive

the right to appeal a sentence of twenty-four months and one

day, which they agreed was an appropriate sentence under Rule

11(c)(1)(C). See 18 U.S.C. § 3742(c) (2006) (imposing

limitations on appeals of sentences under Rule 11(e)(1)(C), now

11(c)(1)(C)). Our review of the record convinces us that, under

the totality of the circumstances, Rivera’s waiver was knowing

and intelligent. Rivera was represented by counsel and assisted

by an interpreter at the Rule 11 hearing; the district court

substantially complied with the requirements of Rule 11; and the

court thoroughly reviewed the waiver provisions with Rivera,

then thirty-four and with some college education. Therefore,

Rivera is bound by his appellate waiver.

Our review of the record convinces us that Rivera’s

guilty plea is knowing, voluntary, and supported by a sufficient

factual basis. See United States v. DeFusco, 949 F.2d 114, 116,

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119-20 (4th Cir. 1991). In accordance with Anders, we have

thoroughly examined the entire record for any potentially

meritorious issues outside the scope of Rivera’s appeal waiver

and have found none. Therefore we affirm Rivera’s conviction

pursuant to his knowing and intelligent guilty plea and dismiss

the appeal as to any other issues.

This court requires that counsel inform Rivera, in

writing, of the right to petition the Supreme Court of the

United States for further review. If Rivera 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 Rivera. 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