United States v. Silvestre Cuadra-Nunez

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4814

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SILVESTRE CUADRA-NUNEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III, Chief
District Judge. (5:14-cr-00198-D-1)

Submitted: September 27, 2016 Decided: December 2, 2016

Before MOTZ, AGEE, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Laura E. Beaver, THE BEAVER LAW FIRM, 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Unpublished opinions are not binding precedent in this circuit.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:

Silvestre Cuadra-Nunez appeals his convictions and sentence

of 180 months of imprisonment following his plea of guilty to

conspiracy to distribute and possess with intent to distribute 5

kilograms or more of cocaine and a quantity of heroin, in violation

of 21 U.S.C. §§ 841(b)(1)(A), 846 (2012) (Count 1), and possession

of a firearm in furtherance of a drug trafficking crime and aiding

and abetting, in violation of 18 U.S.C. §§ 924(c)(1)(A), 2 (2012)

(Count 4). Appellate counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), concluding that there

are no meritorious issues for appeal. We affirm.

A guilty plea is valid where the defendant voluntarily,

knowingly, and intelligently pleads guilty “with sufficient

awareness of the relevant circumstances and likely consequences.”

United States v. Fisher, 711 F.3d 460, 464 (4th Cir. 2013)

(internal quotation marks omitted). Before accepting a guilty

plea, a district court must ensure that the plea is knowing,

voluntary, and supported by an independent factual basis. Fed. R.

Crim. P. 11(b); United States v. DeFusco, 949 F.2d 114, 116 (4th

Cir. 1991). *

* The Government has not invoked the appellate waiver
contained in Cuadra-Nunez’s plea agreement. Therefore, we are not
limited by the waiver provision in conducting our Anders review,
and we need not address its validity. See United States v.
Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).

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 Because Cuadra-Nunez neither raised an objection during the

Rule 11 proceeding nor moved to withdraw his guilty plea in the

district court, we review his Rule 11 proceeding for plain error.

United States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014). Our

review of the record reveals that the district court fully complied

with Rule 11 in accepting Cuadra-Nunez’s guilty plea after a

thorough hearing. Accordingly, we conclude that his plea was

knowing and voluntary, Fisher, 711 F.3d at 464, and thus “final

and binding,” United States v. Lambey, 974 F.2d 1389, 1394 (4th

Cir. 1992) (en banc).

We review Cuadra-Nunez’s sentence for reasonableness “under

a deferential abuse-of-discretion standard.” United States v.

McCoy, 804 F.3d 349, 351 (4th Cir. 2015) (quoting Gall v. United

States, 552 U.S. 38, 41 (2007)). This review entails appellate

consideration of both the procedural and substantive

reasonableness of the sentence. Gall, 552 U.S. at 51. We presume

that a sentence imposed within the properly calculated Sentencing

Guidelines range is reasonable. United States v. Louthian, 756

F.3d 295, 306 (4th Cir. 2014).

We have reviewed the record and conclude that the district

court properly calculated the Guidelines range, treated the

Guidelines as advisory rather than mandatory, gave the parties an

opportunity to argue for an appropriate sentence, considered the

18 U.S.C. § 3553(a) (2012) factors, selected a sentence not based

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on clearly erroneous facts, and sufficiently explained the chosen

sentence. Furthermore, Cuadra-Nunez’s total sentence of 180

months was exactly as recommended by the Guidelines and reflected

the statutory minimum for each count. Therefore, we conclude that

Cuadra-Nunez’s sentence is reasonable.

Cuadra-Nunez next contends generally that the Government

breached the plea agreement, although he identifies no specific

breaches. Because Cuadra-Nunez did not raise this issue in the

district court, we review for plain error. United States v.

Dawson, 587 F.3d 640, 645 (4th Cir. 2009).

We use traditional principles of contract law to interpret

plea agreements and “enforce a plea agreement’s plain language in

its ordinary sense.” United States v. Warner, 820 F.3d 678, 683

(4th Cir. 2016) (internal quotation marks omitted). We give plea

agreements careful scrutiny “because a defendant’s fundamental and

constitutional rights are implicated when he is induced to plead

guilty by reason of a plea agreement.” Id. (brackets and internal

quotation marks omitted).

Based on our review of the record, we are convinced that the

Government has fulfilled all obligations required by the plea

agreement. Thus, we conclude that the Government did not breach

the plea agreement.

Finally, Cuadra-Nunez argues that the district court erred in

denying his motion for extraordinary discovery, by which he sought

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to obtain evidence of the Government’s efforts to evade the time

limitations of the Speedy Trial Act. However, as a general rule,

“when a defendant pleads guilty, he waives all nonjurisdictional

defects in the proceedings conducted prior to entry of the plea,

and thus has no non-jurisdictional ground upon which to attack

that judgment except the inadequacy of the plea.” United States v.

Fitzgerald, 820 F.3d 107, 110 (4th Cir. 2016) (brackets and

internal quotation marks omitted). Thus, because Cuadra-Nunez

pleaded guilty, he has waived his right to seek appellate review

of this issue, and we decline to address it.

In accordance with Anders, we have reviewed the entire record

in this case and have found no meritorious issues for appeal. We

therefore affirm the district court’s judgment. This court

requires that counsel inform Cuadra-Nunez, in writing, of the right

to petition the Supreme Court of the United States for further

review. If Cuadra-Nunez 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 Cuadra-Nunez.

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

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