United States v. Nieves

96 F. App'x 138

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 3, 2004
• Docket: 03-4626
• Status: Unpublished

Opinion

PER CURIAM:

Jose Antonio Nieves pled guilty to possession of 422.8 grams of cocaine base (crack) with intent to distribute, 21 U.S.C.A. § 841(a), (b)(1)(A) (West 1999 & Supp.2003) (Count One), and to possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A) (2000). His plea agreement provided that he waived his right to appeal his sentence “on any ground, including any appeal right conferred by Title 18, United States Code, Section 3742(a),” excepting only claims of prosecutorial misconduct, ineffective assistance of counsel, a sentence in excess of the statutory maximum, and a sentence based on an unconstitutional factor. Nieves was sentenced to a term of 235 months imprisonment for the drug offense and a consecutive five-year term for the § 924(c) offense. He now seeks to appeal his sentence, contending that the district court erred in determining the amount of crack for which he was responsible. Based on Nieves’ waiver of his appeal right, we dismiss the appeal.

A defendant may waive his right to appeal if the waiver is knowing and voluntary. United States v. Brown, 232 F.3d 399, 403 (4th Cir.2000); United States v. Marin, 961 F.2d 493, 496 (4th Cir.1992). The record here discloses that Nieves’ waiver of his appeal right was knowing and voluntary. He does not claim that any of the exceptions apply.

We therefore dismiss the appeal. 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.

DISMISSED