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    1) Jose Fidel de Paz-Lopez pled guilty to conspiracy to interfere with commerce by robbery and use of a firearm in furtherance of a crime of violence. He was sentenced to 30 months for the robbery conspiracy and 84 consecutive months for the firearms offense. 2) Paz-Lopez waived his right to appeal his sentence, which was within the guidelines range. However, he argued the government acted in bad faith by not debriefing him for potential cooperation. 3) The court found Paz-Lopez knowingly and voluntarily accepted the plea agreement and appellate waiver. It dismissed the appeal of his sentence but considered his arguments about ineffective counsel and government misconduct. The court ultimately rejected these

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    1) Jose Fidel de Paz-Lopez pled guilty to conspiracy to interfere with commerce by robbery and use of a firearm in furtherance of a crime of violence. He was sentenced to 30 months for the robbery conspiracy and 84 consecutive months for the firearms offense. 2) Paz-Lopez waived his right to appeal his sentence, which was within the guidelines range. However, he argued the government acted in bad faith by not debriefing him for potential cooperation. 3) The court found Paz-Lopez knowingly and voluntarily accepted the plea agreement and appellate waiver. It dismissed the appeal of his sentence but considered his arguments about ineffective counsel and government misconduct. The court ultimately rejected these

    Original Description:

    Filed: 2011-02-24 Precedential Status: Non-Precedential Docket: 09-5181

    Original Title

    United States v. Paz-Lopez, 4th Cir. (2011)

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    1) Jose Fidel de Paz-Lopez pled guilty to conspiracy to interfere with commerce by robbery and use of a firearm in furtherance of a crime of violence. He was sentenced to 30 months for the robbery conspiracy and 84 consecutive months for the firearms offense. 2) Paz-Lopez waived his right to appeal his sentence, which was within the guidelines range. However, he argued the government acted in bad faith by not debriefing him for potential cooperation. 3) The court found Paz-Lopez knowingly and voluntarily accepted the plea agreement and appellate waiver. It dismissed the appeal of his sentence but considered his arguments about ineffective counsel and government misconduct. The court ultimately rejected these

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
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    27 views5 pages

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    1) Jose Fidel de Paz-Lopez pled guilty to conspiracy to interfere with commerce by robbery and use of a firearm in furtherance of a crime of violence. He was sentenced to 30 months for the robbery conspiracy and 84 consecutive months for the firearms offense. 2) Paz-Lopez waived his right to appeal his sentence, which was within the guidelines range. However, he argued the government acted in bad faith by not debriefing him for potential cooperation. 3) The court found Paz-Lopez knowingly and voluntarily accepted the plea agreement and appellate waiver. It dismissed the appeal of his sentence but considered his arguments about ineffective counsel and government misconduct. The court ultimately rejected these

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    of 5

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 09-5181

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    JOSE FIDEL DE PAZ-LOPEZ,
    Defendant - Appellant.

    Appeal from the United States District Court for the District of
    Maryland, at Baltimore.
    Catherine C. Blake, District Judge.
    (1:09-cr-00014-CCB-2)

    Submitted:

    January 26, 2011

    Decided:

    February 24, 2011

    Before MOTZ, KEENAN, and WYNN, Circuit Judges.

    Affirmed in part; dismissed in part by unpublished per curiam


    opinion.

    A. D. Martin, LAW OFFICE OF ANTHONY D. MARTIN, Greenbelt,


    Maryland, for Appellant.
    Judson T. Mihok, Assistant United
    States Attorney, Baltimore, Maryland, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Jose Fidel de Paz-Lopez appeals his convictions and
    114-month sentence imposed following his guilty plea, pursuant
    to

    written

    plea

    agreement,

    to

    one

    count

    of

    conspiracy

    to

    interfere with commerce by robbery, in violation of 18 U.S.C.


    1951 (2006); and use of a firearm in furtherance of a crime of
    violence

    and

    aiding

    924, 2 (2006).
    thirty

    months

    eighty-four

    and

    abetting,

    in

    violation

    of

    18

    U.S.C.

    The district court sentenced Paz-Lopez to

    imprisonment

    consecutive

    on

    the

    months

    robbery

    conspiracy,

    imprisonment

    on

    the

    plus

    firearms

    count.
    Counsel

    filed

    California,

    386

    meritorious

    grounds

    acted

    in

    consider

    bad
    a

    U.S.

    738
    for

    faith

    by

    downward

    brief

    (1967),
    appeal,

    stating
    but

    failing

    to

    departure

    to

    dismiss

    the

    appeal

    on

    to

    that

    alleging
    debrief

    pursuant

    Guidelines Manual 5K1.1 (2006).


    motion

    pursuant

    Anders

    there
    the

    U.S.

    are

    no

    Government

    Paz-Lopez

    to

    v.

    and

    to

    Sentencing

    The Government has filed a


    the

    basis

    that

    Paz-Lopez

    explicitly waived his right to appeal his sentence in the plea


    agreement.

    Paz-Lopez opposes the motion, contending that he did

    not knowingly agree to the waiver, and that even if the waiver
    is valid, the Governments bad faith refusal to provide him an
    opportunity to cooperate is a claim beyond the scope of the
    waiver.

    Paz-Lopez

    filed

    pro
    2

    se

    supplemental

    brief

    also

    challenging the Governments failure to debrief him and move for


    a downward departure based on substantial assistance.

    Paz-Lopez

    also contends counsel rendered ineffective assistance by failing


    to explain the consequences of his plea.
    We review the validity of a waiver de novo.
    States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).

    United

    A waiver is

    valid if the defendants agreement to the waiver was knowing and


    voluntary.

    United States v. Marin, 961 F.2d 493, 496 (4th Cir.

    1992); United States v. Wessells, 936 F.2d 165, 167 (4th Cir.
    1991).

    To

    intelligent,

    determine
    we

    examine

    whether
    the

    waiver

    totality

    of

    is
    the

    knowing

    and

    circumstances,

    including the experience and conduct of the accused, as well as


    the accuseds educational background and familiarity with the
    terms of the plea agreement.

    United States v. General, 278

    F.3d

    (internal

    389,

    citation

    400

    (4th

    omitted).

    Cir.

    2002)

    Generally,

    if

    quotation

    district

    marks

    court

    and

    fully

    questions a defendant regarding the waiver of appellate rights


    during the Fed. R. Crim. P. 11 colloquy, the waiver is valid and
    enforceable.

    United States v. Johnson, 410 F.3d 137, 151 (4th

    Cir. 2005).
    At the plea hearing, the district court fully complied
    with Fed. R. Crim. P. 11, and specifically ensured that PazLopez understood and agreed to the appellate waiver provision.
    Accordingly, we find that Paz-Lopez knowingly and voluntarily
    3

    entered his guilty plea and that his appellate waiver was also
    knowing and voluntary.
    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.

    Paz-Lopez explicitly waived his right to appeal

    any

    within

    sentence

    or

    below

    the

    advisory

    guidelines

    range

    resulting from an adjusted offense level of 19, with a seven


    year consecutive sentence. . . .
    his

    within-guidelines

    sentence

    Thus, Paz-Lopezs appeal of


    resulting

    from

    his

    adjusted

    offense level of nineteen falls within the scope of that waiver.


    Accordingly, we grant in part the Governments motion to dismiss
    the appeal.
    The appellate waiver does not, however, foreclose a
    claim of ineffective assistance of trial counsel.
    F.3d at 151.

    Johnson, 410

    Nor does it preclude our Anders review of the

    integrity of the Rule 11 proceeding.

    Therefore, we deny in part

    the Governments motion to dismiss the appeal.

    A defendant may

    raise a claim of ineffective assistance of counsel on direct


    appeal if and only if it conclusively appears from the record
    that his counsel did not provide effective assistance.
    States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998).
    that

    the

    counsels

    record

    does

    assistance

    reasonableness.

    not
    fell

    conclusively
    below

    an

    establish
    objective

    United
    We find

    that

    trial

    standard

    of

    Accordingly, we decline to consider this claim


    4

    on direct appeal.
    the

    Government

    faith

    in

    perhaps

    Finally, to the extent Paz-Lopez claims that

    breached

    declining
    earn

    the

    the

    plea

    agreement

    opportunity

    reduction

    in

    his

    for

    and

    him

    sentence,

    acted

    to
    we

    in

    bad

    cooperate

    and

    conclude

    claims are squarely contradicted by the record.

    these

    Wade v. United

    States, 504 U.S. 181, 184-87 (1992).


    In accordance with Anders, we have reviewed the entire
    record in the case and have found no meritorious issues for
    appeal outside the scope of the appellate waiver.

    We therefore

    affirm Paz-Lopezs convictions and dismiss the appeal of his


    sentence.
    writing,

    This court requires that counsel inform Paz-Lopez, in


    of

    the

    right

    to

    petition

    United States for further review.

    the

    Supreme

    Court

    of

    the

    If Paz-Lopez 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.

    Counsels motion must

    state that a copy thereof was served on Paz-Lopez.


    We dispense with oral argument because the facts and
    legal
    before

    contentions
    the

    court

    are

    adequately

    and

    argument

    presented

    would

    not

    in
    aid

    the
    the

    materials
    decisional

    process.
    AFFIRMED IN PART;
    DISMISSED IN PART

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