United States v. Breton-Pichardo

Fourth Circuit

United States v. Breton-Pichardo

155 F. App'x 709

CourtCourt of Appeals for the Fourth Circuit

DecidedDecember 1, 2005

Docket03-4883

StatusUnpublished

This text of 155 F. App'x 709 (United States v. Breton-Pichardo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Breton-Pichardo, 155 F. App'x 709 (4th Cir. 2005).

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PER CURIAM:

Jose Breton-Pichardo appealed his conviction and 262-month sentence following his guilty plea to one count of conspiracy to possess with intent to distribute more than fifty grams of cocaine base (“crack”), in violation of 21 U.S.C. § 846 (2000). Breton-Pichardo’s appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting ineffective assistance of trial counsel. This court granted counsel’s motion to file a supplemental brief asserting a claim under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), * and, in the same opinion, affirmed Breton-Pichardo’s conviction and sentence. See United States v. Breton-Pichardo, 114 Fed.Appx. 577 (4th Cir. 2004) (unpublished). The United States Supreme Court granted Breton-Pichardo’s petition for writ of certiorari, vacated our judgment, and remanded the case to this court for further consideration in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738,160 L.Ed.2d 621 (2005).

The government has moved to dismiss the appeal based upon Breton-Pichardo’s waiver of appellate rights. In his plea agreement, Breton-Pichardo waived the right to appeal sentencing guidelines factors. In United States v. Blick, 408 F.3d 162 (4th Cir.2005), this court determined that a waiver of the right to appeal in a plea agreement entered into prior to the Supreme Court’s decision in Booker was not invalidated by the change in law and that Booker error fell within the scope of a generic waiver. Blick, 408 F.3d at 169-70.

We find that Breton-Pichardo knowingly and voluntarily waived appellate review of Booker claims. Accordingly, we grant the government’s motion to dismiss and dismiss this portion of the appeal. We also reinstate our November 30, 2004 opinion affirming the district court’s judgment in all other respects. 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 AND DISMISSED IN PART

*

Breton-Pichardo also filed a pro se supplemental brief.

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PER CURIAM:

Jose Breton-Pichardo appealed his conviction and 262-month sentence following his guilty plea to one count of conspiracy to possess with intent to distribute more than fifty grams of cocaine base (“crack”), in violation of 21 U.S.C. § 846 (2000). Breton-Pichardo’s appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting ineffective assistance of trial counsel. This court granted counsel’s motion to file a supplemental brief asserting a claim under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), * and, in the same opinion, affirmed Breton-Pichardo’s conviction and sentence. See United States v. Breton-Pichardo, 114 Fed.Appx. 577 (4th Cir. 2004) (unpublished). The United States Supreme Court granted Breton-Pichardo’s petition for writ of certiorari, vacated our judgment, and remanded the case to this court for further consideration in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738,160 L.Ed.2d 621 (2005).

The government has moved to dismiss the appeal based upon Breton-Pichardo’s waiver of appellate rights. In his plea agreement, Breton-Pichardo waived the right to appeal sentencing guidelines factors. In United States v. Blick, 408 F.3d 162 (4th Cir.2005), this court determined that a waiver of the right to appeal in a plea agreement entered into prior to the Supreme Court’s decision in Booker was not invalidated by the change in law and that Booker error fell within the scope of a generic waiver. Blick, 408 F.3d at 169-70.

We find that Breton-Pichardo knowingly and voluntarily waived appellate review of Booker claims. Accordingly, we grant the government’s motion to dismiss and dismiss this portion of the appeal. We also reinstate our November 30, 2004 opinion affirming the district court’s judgment in all other respects. 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 AND DISMISSED IN PART

*

Breton-Pichardo also filed a pro se supplemental brief.

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