UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4335
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ISHMAEL AVIVE SANTIAGO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:11-cr-00287-BO-2)
Submitted: November 7, 2012 Decided: November 29, 2012
Before MOTZ, KING, and KEENAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Leza L. Driscoll, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:
Ishmael Avive Santiago pled guilty, pursuant to a plea
agreement, to conspiracy to interfere with interstate commerce
by robbery, in violation of 18 U.S.C. § 1951 (2006), and using
and carrying a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. §§ 924(c) and 2 (2006). The
district court sentenced Santiago to fifty-one months’
imprisonment on the first charge and eighty-four months’
imprisonment on the second, to be served consecutively. On
appeal, Santiago’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that she found no
meritorious issues for appeal but questioning whether the
district court erred in applying a four-level abduction
enhancement. The Government has moved to dismiss Santiago’s
appeal, asserting that he waived the right to appeal his
sentence in his plea agreement. We dismiss in part and affirm
in part.
We review de novo whether a defendant has effectively
waived his right to appeal. United States v. Marin, 961 F.2d
493, 496 (4th Cir. 1992). An appellate waiver must be “the
result of a knowing and intelligent decision to forgo the right
to appeal.” United States v. Broughton-Jones, 71 F.3d 1143,
1146 (4th Cir. 1995) (internal quotation marks and citation
omitted). To determine whether a waiver is knowing and
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intelligent, this court examines the totality of the
circumstances, including the defendant’s experience, conduct,
educational background, and familiarity with the plea
agreement’s terms. United States v. General, 278 F.3d 389, 400
(4th Cir. 2002). Generally, if a district court fully questions
a defendant regarding the appellate waiver during the Rule 11
colloquy, the waiver is both valid and enforceable. United
States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). However,
this court will refuse to enforce an otherwise valid waiver if
enforcing the waiver would result in a miscarriage of justice.
Id.
Upon review of the plea agreement and the transcript
of the Fed. R. Crim. P. 11 hearing, we conclude that Santiago
knowingly and voluntarily agreed to the waiver of appellate
rights as set forth in the plea agreement. During the Rule 11
colloquy, the court reviewed the terms of the plea agreement
with Santiago, including the waiver provision, and Santiago
affirmed that he understood those terms. Additionally, Santiago
does not contest the waiver’s validity in his Anders brief or
his response to the Government’s motion to dismiss.
We next determine whether the issue Santiago seeks to
raise on appeal falls within the appellate waiver’s scope.
Santiago’s appellate waiver reserved the right to appeal only
from a sentence in excess of the Guidelines range established at
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sentencing. Because the district court imposed a sentence
within the advisory Guidelines range, and Santiago challenges
the district court’s calculation of the Guidelines range, the
issue Santiago seeks to raise on appeal falls squarely within
the scope of the appellate waiver. Accordingly, we grant the
Government’s motion to dismiss Santiago’s appeal of his
sentence.
The waiver provision, however, does not preclude this
court’s review of Santiago’s convictions pursuant to Anders.
Prior to accepting a guilty plea, the district court must
conduct a plea colloquy in which it informs the defendant of,
and determines that the defendant understands: the nature of the
charges to which he is pleading guilty, any mandatory minimum
penalty, the maximum possible penalty, and the rights he is
relinquishing by pleading guilty. Fed. R. Crim. P. 11(b)(1);
United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
Additionally, the district court must ensure that the
defendant’s plea was voluntary and did not result from force,
threats, or promises not contained in the plea agreement. Fed.
R. Crim. P. 11(b)(2). Because Santiago did not move to withdraw
his guilty plea in the district court or raise any objections to
the Rule 11 colloquy, we review the colloquy for plain error.
United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002).
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We find that the district court substantially complied
with Rule 11’s requirements, and committed no error warranting
correction on plain error review. In accordance with Anders, we
have reviewed the record and have found no meritorious issues
for appeal. We therefore affirm Santiago’s convictions.
This court requires that counsel inform Santiago, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Santiago requests that a
petition be filed, but counsel believes that such petition would
be frivolous, counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Santiago. 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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