United States of America v. Evelio Arroyo-Duarte

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4663
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EVELIO ARROYO-DUARTE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson,
District Judge. (5:06-cr-00050-sgw)
Submitted: January 22, 2010 Decided: February 26, 2010
Before NIEMEYER and MICHAEL, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,
Charlottesville, Virginia, for Appellant. Julia C. Dudley,
United States Attorney, Donald R. Wolthuis, Assistant United
States Attorney, Brandon Crook, Third Year Practice Law Student,
Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Evelio Arroyo-Duarte pled guilty to conspiracy to
distribute and possess with intent to distribute more than fifty
grams of methamphetamine and a measurable quantity of
amphetamine, in violation of 21 U.S.C. § 846 (2006),
distribution or possession with intent to distribute more than
fifty grams of amphetamine, in violation of 21 U.S.C.A.
§ 841(a)(1), (b)(1)(C) (West Supp. 2009), distribution or
possession with intent to distribute more than fifty grams of
methamphetamine, in violation of 21 U.S.C.A. § 841(a)(1),
(b)(1)(B) (West Supp. 2009), distribution or possession with
intent to distribute amphetamine, in violation of 21 U.S.C.A.
§ 841(a)(1), (b)(1)(C) (West Supp. 2009), and possession of a
firearm with a removed serial number, in violation of 18 U.S.C.
§ 922(k) (2006). The district court sentenced Arroyo-Duarte to
135 months= incarceration for the first four counts and 60 months
for the fifth count, all to run concurrently.
On appeal, Arroyo-Duarte argues that the district
court erred by denying his motion for a downward departure
pursuant to 18 U.S.C. § 3553(f) (2006) and U.S. Sentencing
Guidelines Manual § 5C1.2.1 (2008). The Government has moved to
dismiss the appeal on the ground that Arroyo-Duarte knowingly
and intelligently waived his right to appeal his sentence
imposed under the Sentencing Guidelines.

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A defendant may, in a valid plea agreement, waive the
right to appeal. United States v. Wiggins, 905 F.2d 51, 53 (4th
Cir. 1990). Any such waiver must be made by a “‘knowing and
intelligent decision to forgo the right to appeal.’” United
States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995)
(quoting United States v. Attar, 38 F.3d 727, 731 (4th Cir.
1994)). Whether a defendant has effectively waived his right to
appeal is an issue of law this court reviews de novo. United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
An appellate waiver is generally considered to be
knowing and voluntary if the district court specifically
questioned the defendant concerning the waiver provision during
the Rule 11 colloquy and the record indicates that the defendant
understood the full significance of the waiver and was not
denied effective assistance of counsel. See United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005). Our review of the
record leads us to conclude that Arroyo-Duarte knowingly and
voluntarily entered into the plea agreement and thus his
appellate waiver is valid and enforceable.
The plea agreement provided that Arroyo-Duarte waived
his right to a jury trial and any claims of ineffective
assistance of counsel known by him and not raised at the time of
sentencing. Further, the agreement stated:

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I agree that after my full and fair sentencing
hearing, I will not then appeal any sentencing
guidelines factors or the Court’s application of the
sentencing guidelines factors to the facts of my case.
I am knowingly and voluntarily waiving any right to
appeal sentencing guidelines factors, and am
voluntarily willing to rely on the Court in sentencing
me under the Sentencing Guidelines.
Arroyo-Duarte argues on appeal that the district court
erred by denying his motion for a downward departure pursuant to
the safety valve provisions of 18 U.S.C. § 3553(f) and USSG
§ 5C1.2. Arroyo-Duarte argues that USSG § 5C1.2 provides
eligibility to a defendant who, among other factors, was not an
“organizer, leader, manager, or supervisor of others” in a
criminal offense involving five or more participants, and his
offense involved fewer than five. To the extent that
Arroyo-Duarte contests the district court’s application of USSG
§ 5C1.2, his waiver forecloses his argument on appeal.
To the extent that this argument is a challenge to the
application of a statute and not a Guidelines determination, the
district court did not err in denying the motion for a downward
departure. The legislative limitation on the applicability of
statutory mandatory minimums in certain cases, generally
referred to as the “safety valve” provision, directs district
courts in limited circumstances to impose a sentence pursuant to
the Sentencing Guidelines regardless of any statutory mandatory
minimum sentence. See 18 U.S.C. § 3553(f).

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This subsection can only apply where, among other
factors, “the defendant was not an organizer, leader, manager,
or supervisor of others in the offense, as determined under the
sentencing guidelines and was not engaged in a continuing
criminal enterprise.” § 3553(f)(4). Under this section, the
term “organizer, leader, manager, or supervisor of others”
includes any defendant who received an adjustment for an
aggravated role under USSG § 3B1.1. USSG § 5C1.2, comment.
(n.5).
Arroyo-Duarte did, in fact, receive an adjustment
under USSG § 3B1.1(c). Arroyo-Duarte stipulated to this
adjustment in his plea agreement. “To qualify for an adjustment
under this section, the defendant must have been the organizer,
leader, manager, or supervisor of one or more other
participants.” USSG § 3B1.1, comment. (n.2). Therefore,
contrary to Arroyo-Duarte’s argument, a defendant found to be in
charge of simply one other participant is ineligible for the
safety valve application. Because Arroyo-Duarte does not
dispute that he supervised at least one other participant, and
indeed stipulated to an aggravated role adjustment under USSG
§ 3B1.1, he does not satisfy the requirements of 18 U.S.C.
§ 3553(f). Accordingly, the district court properly denied its
application.

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In his brief, Arroyo-Duarte additionally contends that
the plea agreement did not preclude him from requesting
application of the safety valve provision, and the district
court erred in requiring him to withdraw his guilty plea in
order to argue for the safety valve application. Because the
district court correctly interpreted the plea agreement as
precluding application of the safety valve, it was not error to
require Arroyo-Duarte to choose between proceeding in conformity
with the terms of the agreement or withdrawing the agreement
entirely.
Accordingly, we grant the Government’s motion to
dismiss in part as to the claims raised under the Sentencing
Guidelines, and deny the Government’s motion to dismiss in part
and affirm the sentence as to Arroyo-Duarte’s statutory claim.
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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