US v. Ishmael Santiago, No. 12-4335 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4335 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ISHMAEL AVIVE SANTIAGO, Defendant -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 Affirmed in part; dismissed in part by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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). district court imprisonment imprisonment sentenced on on the the Santiago first second, charge to to fifty-one served months eighty-four and be The months consecutively. On appeal, Santiago s counsel filed a brief pursuant to Anders v. California, 386 meritorious issues district court enhancement. appeal, U.S. 738 for erred (1967), appeal in stating but that she questioning applying a found whether four-level no the abduction The Government has moved to dismiss Santiago s asserting that he waived sentence in his plea agreement. the right to appeal his We dismiss in part and affirm in part. We review de novo whether a defendant has effectively waived his right to appeal. 493, 496 (4th Cir. 1992). United States v. Marin, 961 F.2d An appellate waiver must be the result of a knowing and intelligent decision to forgo the right to appeal. 1146 (4th omitted). United States v. Broughton-Jones, 71 F.3d 1143, Cir. To 1995) (internal determine quotation whether 2 a marks waiver is and citation knowing and intelligent, this circumstances, educational court including the background, agreement s terms. (4th Cir. 2002). examines the totality defendant s and of experience, familiarity with the conduct, the plea United States v. General, 278 F.3d 389, 400 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. States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). United 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 rights as set forth in the plea agreement. of appellate During the Rule 11 colloquy, the court reviewed the terms of the plea agreement with Santiago, including the waiver provision, affirmed that he understood those terms. and Santiago 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 3 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. Government s motion to dismiss Accordingly, we grant the Santiago s appeal of his sentence. The waiver provision, however, does not preclude this court s Prior review to of Santiago s accepting a guilty convictions plea, the pursuant to Anders. 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, relinquishing by pleading guilty. and the rights he is 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. R. Crim. P. 11(b)(2). Fed. 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). 4 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 United States for further review. the Supreme Court of the If Santiago requests that a petition be filed, but counsel believes that such petition would be frivolous, counsel may move withdraw from representation. in this court for leave to 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 5
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