United States of America v. Sarhait Lucio-Zamudio

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4281
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SARHAIT LUCIO-ZAMUDIO,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Chief District
Judge. (8:08-cr-00528-DKC-8)
Submitted: March 31, 2011 Decided: April 4, 2011
Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Marc Gregory Hall, HALL & CHO, P.C., Rockville, Maryland, for
Appellant. Barbara Suzanne Skalla, Assistant United States
Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Sarhait Lucio-Zamudio appeals from her conviction for
conspiracy to distribute and to possess with intent to
distribute heroin, cocaine and methamphetamine and her resulting
eighteen-month prison sentence. On appeal, Lucio-Zamudio’s
attorney has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), asserting that there are no meritorious grounds
for appeal, but challenging the appropriateness of the given
sentence. Lucio-Zamudio was informed of her right to file a pro
se supplemental brief but has not done so. The Government has
filed a motion to dismiss the appeal on the basis of the
appellate waiver provision in Lucio-Zamudio’s plea agreement.
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006). United States v.
Manigan, 592 F.3d 621, 627 (4th Cir. 2010). We review the
validity of an appellate waiver de novo, and we will uphold a
waiver of appellate rights if the waiver is valid and the issue
being appealed is covered by the waiver. United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005). An appellate waiver
is valid if the defendant’s agreement to the waiver was knowing
and intelligent. Id. at 169. Generally, if a district court
fully questions a defendant regarding the waiver of appellate
rights during the Federal Rule of Criminal Procedure 11
colloquy, and the record indicates that the defendant understood

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the full significance of the waiver and was not denied effective
assistance of counsel, the waiver is valid. United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
A review of the Rule 11 hearing transcript confirms
that Lucio-Zamudio knowingly and intelligently waived her right
to appeal. In her plea agreement, Lucio-Zamudio explicitly
waived the right to challenge any sentence under ten years, and
she confirmed at her Rule 11 hearing that she understood the
plea agreement. The district court conducted the colloquy
required under Rule 11, ensuring that Lucio-Zamudio understood
the charges and potential penalties, and that she was competent
to enter the plea. We therefore conclude that Lucio-Zamudio
knowingly and intelligently waived the right to appeal her
sentence. Because Lucio-Zamudio explicitly challenges only her
sentence on appeal, we further conclude that Lucio-Zamudio’s
appeal falls squarely within the scope of the waiver provision,
and we, therefore, grant the motion to dismiss as to
Lucio-Zamudio’s sentence.
The waiver provision, however, did not waive
Lucio-Zamudio’s right to appeal her conviction. While defense
counsel does not assert any errors related to Lucio-Zamudio’s
guilty plea or convictions, the appeal waiver does not preclude
our review of Lucio-Zamudio’s conviction pursuant to Anders. In
accordance with Anders, we have thoroughly examined the entire

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record for any potentially meritorious issues not covered by the
waiver and have found none. Accordingly, we deny the
Government’s motion to dismiss as to Lucio-Zamudio’s conviction,
and we affirm the conviction.
In sum, the Government’s motion to dismiss is granted
in part and denied in part, Lucio-Zamudio’s appeal of her
sentence is dismissed, and her conviction is affirmed. This
court requires that counsel inform Lucio-Zamudio, in writing, of
her right to petition the Supreme Court of the United States for
further review. If Lucio-Zamudio 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 Lucio-Zamudio. 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

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