United States v. Hernandez, 4th Cir. (2009)
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Scribd Government DocsUnited States v. Hernandez, 4th Cir. (2009)
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Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4805
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE GINEZ HERNANDEZ, a/k/a Gumby,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (5:07-cr-00063-gec-jgw-15)
Submitted:
May 15, 2009
Before WILKINSON and
Senior Circuit Judge.
GREGORY,
Decided:
Circuit
Judges,
June 5, 2009
and
HAMILTON,
Affirmed by unpublished per curiam opinion.
Aaron L. Cook, AARON L. COOK, PC, Harrisonburg, Virginia, for
Appellant.
Julia C. Dudley, United States Attorney, Donald R.
Wolthuis, Assistant United States Attorney, Roanoke, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Ginez Hernandez pled guilty pursuant to a written
plea
agreement
to
conspiracy
to
manufacture,
distribute,
and
possess with intent to distribute cocaine hydrochloride, cocaine
base,
and
(2006).
methamphetamine,
Hernandez
imprisonment.
was
in
violation
sentenced
of
to
21
U.S.C.
seventy-six
846
months
Finding no error, we affirm.
On appeal, counsel contends that Hernandezs sentence
is substantively unreasonable.
The Government asserts that this
court should refuse to consider the appeal based on the appeal
waiver provision in Hernandezs plea agreement.
the
Government
contends
that
the
sentence
Alternatively,
imposed
by
the
district court is reasonable.
Under
the
terms
outlined
in
the
plea
agreement,
Hernandez agree[d] that after [his] full and fair sentencing
hearing, [he would] not then appeal any sentencing guidelines
factors or the Courts application of the sentencing guidelines
factors to the facts of [his] case.
that
he
was
knowingly
and
Hernandez further agreed
voluntarily
waiving
any
right
to
Although Hernandez was subject to a statutory mandatory
minimum of ten years, see 21 U.S.C.A. 841(b)(1)(A) (West 1999
& Supp. 2008), application of the safety-valve permitted the
district court to impose a sentence in accordance with the
applicable guidelines without regard to [the] statutory minimum
sentence. U.S. Sentencing Guidelines Manual 5C1.2(a) (2007).
appeal
sentencing
guidelines
factors
and
that
he
was
voluntarily willing to rely on the Court in sentencing [him]
under the Sentencing Guidelines.
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. 3742 (2006).
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).
United States v.
Whether a defendant
has effectively waived the right to appeal is an issue of law
that we review de novo.
United States v. Blick, 408 F.3d 162,
168 (4th Cir. 2005).
Where, as here, the United States seeks enforcement of
an appeal waiver and there is no claim that the United
States
breached
its
obligations
under
the
plea
agreement, we will enforce the waiver to preclude a
defendant from appealing a specific issue if the
record establishes that the waiver is valid and that
the issue being appealed is within the scope of the
waiver.
Id. (internal citations omitted).
An appeal waiver is valid if
the defendant knowingly and intelligently agreed to waive the
right to appeal.
Id. at 169.
However, [a]n appeal waiver is
not knowingly or voluntarily made if the district court fails to
specifically
question
the
defendant
concerning
the
waiver
provision of the plea agreement during the [Fed. R. Crim. P.] 11
colloquy and the record indicates that the defendant did not
otherwise
understand
the
full
significance
of
the
waiver.
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005)
(internal quotation marks and citation omitted).
At
Hernandez
school.
the
was
Rule
11
hearing,
twenty-seven
years
it
old
was
and
established
had
completed
that
high
Hernandez confirmed that he understood English with the
aid of an interpreter.
He did not have a history of mental
illness and was not under the influence of any medications or
controlled substances at the time of the hearing.
Hernandez
acknowledged
with
that
he
reviewed
the
plea
agreement
attorney, voluntarily agreed to its terms, and signed it.
his
The
magistrate judge specifically questioned Hernandez regarding the
appeal waiver, and Hernandez responded that he understood its
effects.
Therefore, we conclude the appeal waiver is both valid
and enforceable.
However,
procedural
because
challenges,
the
appeal
counsels
waiver
claim
is
of
limited
to
substantive
unreasonableness falls outside the scope of the waiver and will
be considered on appeal.
Assuming that the district courts
sentencing decision is procedurally sound, the appellate court
should
then
consider
the
substantive
reasonableness
of
the
sentence imposed . . . tak[ing] into account the totality of the
circumstances, including the extent of any variance from the
Guidelines range.
(2007).
sentence,
Gall v. United States, 128 S. Ct. 586, 597
Appellate review of a district courts imposition of a
whether
inside,
just
outside,
or
significantly
outside the Guidelines range, is for abuse of discretion.
4
Id.
at 591.
Sentences within the applicable Guidelines range may be
presumed by the appellate court to be reasonable.
United States
v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
Counsel
contends
that
the
sentence
is
greater
than
necessary to accomplish the goals of 18 U.S.C. 3553(a) (2006).
The district court considered multiple factors in fashioning the
sentence,
including
magnitude
of
conspirators,
the
Hernandezs
conspiracy,
Hernandezs
role
the
need
for
in
the
sentences
substance
offense,
of
other
abuse
the
co-
treatment,
and the application of the safety-valve.
Moreover, Hernandezs
sentence,
Guidelines
below
which
the
is
within
applicable
the
advisory
statutory
reasonable by this court.
minimum,
may
be
range
and
presumed
Thus, the district court did not
abuse its discretion in imposing the chosen sentence.
Accordingly, we affirm the judgment of the district
court.
legal
before
We dispense with oral argument because the facts and
contentions
the
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED
