UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4765
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HOMERO ARMENDARIZ-TAMEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (2:11-cr-00040-H-2)
Submitted: April 15, 2013 Decided: April 30, 2013
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
James M. Ayers II, AYERS & HAIDT, P.A., New Bern, 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Unpublished opinions are not binding precedent in this circuit.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:
Homero Armendariz-Tamez appeals the 156-month sentence
imposed by the district court following his guilty plea,
pursuant to a written plea agreement, to conspiracy to
distribute and to possess with intent to distribute more than
five kilograms of cocaine, in violation of 21 U.S.C. § 846
(2006), possession of a firearm by an illegal alien, in
violation of 18 U.S.C. §§ 922(g)(5), 924 (2006), and illegal
reentry, in violation of 8 U.S.C. § 1326(a) (2006). On appeal,
Armendariz-Tamez’s 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 the
district court abused its discretion in applying a two-level
enhancement for Armendariz-Tamez’s role in the offense.
Armendariz-Tamez has filed a pro se supplemental brief raising
the same issue.
The Government has filed a motion to dismiss
Armendariz-Tamez’s appeal based on the appellate waiver
provision in the plea agreement. Armendariz-Tamez’s counsel
opposes the Government’s motion as untimely. In his pro se
supplemental brief, Armendariz-Tamez argues that his appellate
waiver was not valid. We grant in part the Government’s motion
and dismiss Armendariz-Tamez’s appeal of his sentence, and we
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deny in part the Government’s motion and affirm Armendariz-
Tamez’s convictions.
We review de novo 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); see United States v. General, 278 F.3d 389, 400 (4th
Cir. 2002) (providing standard). The district court’s failure
to specifically question the defendant’s understanding of the
waiver provision is relevant to, but not dispositive of, the
question of whether the waiver was knowing and intelligent. Id.
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.
Contrary to counsel’s response in opposition, the
Government timely raised the appellate waiver issue. See United
States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (stating
that government is free to raise appellate waiver in response to
Anders brief). Additionally, our review of the record leads us
to conclude that, under the totality of the circumstances,
Armendariz-Tamez’s waiver of appellate rights was knowing and
intelligent. Thus, the waiver is valid and enforceable.
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Turning to the scope of the waiver, we conclude that
the sentencing issue raised in both the Anders brief and the pro
se supplemental brief falls within the scope of the appellate
waiver provision, because the 156-month downward departure
sentence imposed by the district court fell below the Guidelines
range established at the sentencing hearing. Therefore, we
grant in part the Government’s motion to dismiss and dismiss
this portion of the appeal.
The waiver provision does not, however, preclude our
review of Armendariz-Tamez’s convictions pursuant to Anders.
Armendariz-Tamez does not assert any error in the district
court’s acceptance of his guilty plea. We have reviewed the
plea colloquy for plain error and have found none. See United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (providing
standard); see also United States v. Olano, 507 U.S. 725, 732
(1993) (detailing plain error standard).
In accordance with Anders, we have reviewed the entire
record and have found no unwaived and potentially meritorious
issues for review. We therefore affirm Armendariz-Tamez’s
convictions. This court requires that counsel inform
Armendariz-Tamez, in writing, of his right to petition the
Supreme Court of the United States for further review. If
Armendariz-Tamez requests that a petition be filed, but counsel
believes that such a petition would be frivolous, counsel may
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move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
Armendariz-Tamez. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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