UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4004
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CARLOS MORALES LOPEZ, a/k/a Tatone,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:09-cr-00049-RLV-DCK-2)
Submitted: April 23, 2012 Decided: May 10, 2012
Before KING, KEENAN, and WYNN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Faith S. Bushnaq, BUSHNAQ LAW OFFICE, PLLC, Charlotte, 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Unpublished opinions are not binding precedent in this circuit.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:
Carlos Lopez appeals his conviction and 210-month
sentence for conspiracy to distribute and possess with intent to
distribute at least five kilograms of cocaine and at least fifty
grams of cocaine base, in violation of 21 U.S.C. § 846 (2006).
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that there are no
meritorious grounds for appeal but questioning whether an
incomplete transcript of the guilty plea hearing renders
effective appellate review impossible, and whether the district
court erred in failing to sufficiently explain Lopez’s sentence.
Lopez filed a pro se supplemental brief claiming that the
district court erred in enhancing his sentence based on his
coconspirator’s possession of a firearm.
The Government initially declined to file a response
brief. Pursuant to our review under Anders, we directed the
Government to file a brief addressing the adequacy of the
district court’s explanation for the sentence. In the resulting
brief, the Government not only addresses the sentencing issue
but asserts that the appellate waiver provision in the plea
agreement bars any claim of sentencing error, and urges us to
enforce the waiver and dismiss the appeal. We affirm in part
and dismiss in part.
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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
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 so long as “the issue
being appealed is within the scope of the waiver.” Blick, 408
F.3d at 168.
In the plea agreement, Lopez agreed to waive all
appellate rights relating to his conviction and sentence except
for claims of ineffective assistance of counsel or prosecutorial
misconduct. Moreover, the agreement specifically states that
Lopez waives his “to appeal whatever sentence is imposed.” Our
review of the record convinces us that Lopez’s waiver was
knowing and intelligent. We are well able, even with the
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partial transcript of the guilty plea hearing, * to conclude that
under the totality of the circumstances, Lopez’s waiver of
appellate rights was knowing and voluntary.
Turning to the scope of the waiver, we conclude that
the sentencing issues raised by counsel in the Anders briefs and
by Lopez in the pro se supplemental brief fall within the scope
of the appellate waiver provision, and we dismiss the appeal as
to those claims.
In accordance with Anders, we have thoroughly examined
the entire record for any other potentially meritorious issues
outside the scope of Lopez’s appeal waiver and have found none.
Therefore we affirm in part as to any potential claims not
foreclosed by the waiver provision, and dismiss the appeal in
part as to those claims encompassed by the waiver. This court
requires that counsel inform Lopez, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Lopez 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 Lopez. We dispense with oral argument because the
*
The transcript is incomplete as it was created from a
digital recording that ended prior to the conclusion of the
hearing.
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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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