                           UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 00-4287
ARTURO GAYTAN PONCE,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
          for the District of South Carolina, at Columbia.
                  Dennis W. Shedd, District Judge.
                              (CR-99-18)

                       Argued: February 28, 2002

                      Decided: November 12, 2002

       Before WILLIAMS and KING, Circuit Judges, and
      Andre M. DAVIS, United States District Judge for the
          District of Maryland, sitting by designation.



Affirmed by unpublished per curiam opinion.


                              COUNSEL

ARGUED: Edward Lucius Ciccone, Corpus Christi, Texas, for
Appellant. Marshall Prince, Assistant United States Attorney, Colum-
bia, South Carolina, for Appellee. ON BRIEF: Scott N. Schools,
United States Attorney, Ann Agnew Cupp, Columbia, South Carolina,
for Appellee.
2                       UNITED STATES v. PONCE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   Appellant Arturo G. Ponce pled guilty pursuant to a plea agreement
to drug conspiracy and related firearms charges. Disappointed with
his sentence, Ponce appeals, contending that the district court violated
Rule 11(e) of the Federal Rules of Criminal Procedure when the court
rejected the parties’ stipulation as to drug quantity.* We find that the
district court’s rejection of the parties’ stipulation as to drug quantity
was consistent with the plea agreement. Accordingly, we affirm.

                                    I.

   In our assessment of the adequacy of a guilty plea proceeding, the
standard of review is de novo, "but in the Rule 11 context, violations
are evaluated under a harmless error standard." United States v.
Damon, 191 F.3d 561, 564 n.2 (4th Cir. 1999) (internal quotation
marks omitted) (quoting United States v. Goins, 51 F.3d 400, 402 (4th

   *The United States has moved to dismiss the appeal in reliance upon
the written waiver contained in the plea agreement. "Whether a defen-
dant has effectively waived his statutory right to appeal his sentence is
a question of law subject to de novo review." United States v. General,
278 F.3d 389, 399 (4th Cir. 2002). "Whether such a waiver is ‘knowing
and intelligent’ depends ‘upon the particular facts and circumstances sur-
rounding [its making], including the background, experience, and con-
duct of accused.’" United States v. Attar, 38 F.3d 727, 731 (4th Cir.
1994)(alteration in original) (quoting United States v. Davis, 954 F.2d
182, 186 (4th Cir. 1992)). We have carefully examined the record and,
although the question is extremely close, we conclude that particularly
in view of Ponce’s limited education and his limited comprehension of
the English language, the magistrate judge’s questioning of Ponce as to
the waiver of his right to appeal was not sufficiently probing to establish
that the waiver was knowing and intelligent. Therefore, we deny the
motion to dismiss the appeal.
                        UNITED STATES v. PONCE                         3
Cir. 1995)). An appeal from a sentence entered on a guilty plea
regarding an issue that is raised for the first time on appeal will be
affirmed unless we find plain error. United States v. Fant, 974 F.2d
559, 565 (4th Cir. 1992); United States v. McQueen, 108 F.3d 64, 66
(4th Cir. 1997). "‘Plain error’ is shown when the error committed ‘is
so obvious and substantial that failure to notice and correct it would
affect the fairness, integrity or public reputation of judicial proceed-
ings.’" Fant, 974 F.2d at 565 (quoting United States v. Navejar, 963
F.2d 732, 734 (5th Cir. 1992)).

                                   II.

                                   A.

   In a nine-count Superseding Indictment, filed February 17, 1999,
in the District of South Carolina, the grand jury charged Ponce and
four co-defendants with drug and firearms offenses. Ponce was
charged in six of the nine counts. J.A. at 27-32. In the course of the
underlying investigation, officers had seized more than three kilo-
grams of cocaine and a firearm on December 16, 1998. On the day
trial was scheduled to commence, April 12, 1999, Ponce and the pros-
ecution entered into a written plea agreement. Id. at 33. The plea
agreement provided that Ponce would plead guilty to count one
(charging conspiracy to possess with the intent to distribute and to
distribute cocaine and cocaine base in violation of 21 U.S.C. § 841
(a)(1)) and count four (charging possession and use of a firearm in
furtherance of a drug-trafficking crime, in violation of 18 U.S.C.
§§ 924(c)(1), (c)(2)). Among other provisions, the plea agreement
provided as follows: (1) the prosecution would move to dismiss the
remaining counts of the Superseding Indictment and the Original
Indictment, J.A. at 33, 36-37; and (2) the district court would be free
to impose any lawful sentence as determined in its sole discretion, id.
at 38, without any limitation as to the district court’s consideration of
any of Ponce’s offense conduct. Id. at 37. Moreover, the prosecution
agreed to recommend that, if Ponce were prosecuted for similar
crimes occurring in North Carolina before February 17, 1999 (there
was an on-going parallel investigation), any North Carolina sentence
should run concurrently with the sentence Ponce received in South
Carolina. Id. at 36.
4                        UNITED STATES v. PONCE
   On April 28, 1999, a magistrate judge conducted a change-of-plea
hearing in accordance with Fed. R. Crim. P. 11. Id. at 41-83. The
magistrate judge went through the customary litany designed to
ensure a defendant’s guilty plea is knowing and voluntary. Id. Specifi-
cally, the magistrate judge determined that Ponce had obtained the
equivalent of a second grade education in Mexico and spoke little
English. Id. at 46. The magistrate judge determined that Ponce was
competent to enter a plea, and neither counsel nor Ponce objected or
voiced concern. Id. at 47. Ponce also told the magistrate judge that he
had ample opportunity to discuss the case with his retained attorney,
that an interpreter had been present to aid in his interactions with his
attorney, and that Ponce believed that his attorney had done every-
thing asked of him. Id. at 49-50.

   Subsequently, the magistrate judge advised Ponce as to the maxi-
mum penalty for his offenses. With respect to count one, the magis-
trate judge stated, in part:

     The maximum penalty for this offense is graduated [up to
     life incarceration] by the amount of drugs which was the
     object of the conspiracy. I cannot tell you at this time that
     amount of drugs because that may be a matter of dispute at
     the sentencing hearing, so I can only advise you as to the
     absolute maximum penalty.

Id. at 57 (emphasis added). The magistrate judge also advised Ponce,
and Ponce stated that he understood, that the court could not deter-
mine the applicable sentencing guideline range until the presentence
report had been completed and both sides had the opportunity to chal-
lenge any disputed facts contained in the report. Id. at 64. The magis-
trate judge also assured that Ponce understood that the sentencing
judge, in some circumstances, has the authority to impose a more or
less severe sentence than that called for by the applicable guideline.
Id. at 65.

   Next, the Assistant United States Attorney summarized the provi-
sions of the plea agreement. Id. at 67-73; see also J.A. at 33-40. In
so doing, he stated that "the defendant[ ] understand[s] that the matter
of sentencing is within the sole discretion of the court . . . ." Id. at 70-
                       UNITED STATES v. PONCE                         5
71. The Assistant United States Attorney then recited the stipulation
regarding drug quantity which is the focus of Ponce’s appeal:

    The attorneys for the Government and the defendant, Mr.
    Ponce, stipulate and agree that the quantity of powder
    cocaine involved is 3 kilos with a base offense level of [28]
    for purposes of calculating the defendant’s sentence pursu-
    ant to the United States sentencing commission guideline,
    the United States sentencing guidelines 2D1.1. The defen-
    dant understands that these stipulations are not binding
    upon the court or the United States Probation Office and the
    defendant has no right to withdraw his plea should these
    stipulations not be accepted . . . .

Id. at 73 (emphasis added). Ponce then stated that he understood the
summary of the plea agreement, id. at 74, and the magistrate judge
found that Ponce was entering his guilty plea voluntarily. Id. at 76.

   Subsequently, the North Carolina investigation of Ponce concluded
without the filing of additional charges. Prompted by a fear that infor-
mation regarding Ponce’s alleged activities in North Carolina might
be used at the sentencing in this case by the Office of the United
States Attorney in South Carolina, in violation of the plea agreement,
Ponce filed, on August 25, 1999, a motion for specific performance
of the plea agreement or withdrawal of his guilty plea. Id. at 84-100.
On October 12, 1999, the district court conducted a hearing on
Ponce’s motion. Id. at 104.

  During the hearing, the district court made it clear that, on some
occasions in other cases, it had rejected stipulations as to drug
amounts contained in plea agreements:

    What I have done before is, when there is a stipulation in the
    plea agreement, which we don’t have here, you both know
    my practice, I’ll say, "The government can stipulate to it and
    that means that they can’t argue for more drugs. And the
    defendant stipulates and that means that he can’t argue for
    less, but it doesn’t bind me."
6                      UNITED STATES v. PONCE
      And what has happened on occasion is, on occasion is I
    have had probation independently review the files and infor-
    mation that is in the file, the South Carolina file, that could
    have been overlooked or just misplaced, I have on occasion
    charged the defendant with those drugs, because those are
    on the record, in the file, and everybody is on notice of
    them.

      So, even though a stipulation — the parties may have
    entered a stipulation, that doesn’t bind me. And those drug
    amounts, I will sometimes charge against the client. In this
    case we don’t have that.

Id. at 113-14.

   There then ensued a rather ambiguous exchange between the prose-
cutor and the district court. Id. at 115-20. The prosecutor conceded
that at the time the plea agreement was negotiated, the parties antici-
pated that Ponce would indeed be charged in North Carolina. Id. at
120 ("[W]e both anticipated that something would occur in North
Carolina."). Ultimately, as reflected in the following exchange, the
prosecutor suggested that the parties might be permitted to withdraw
from the plea agreement and either resume negotiations or go to trial,
but Ponce, through counsel, firmly rejected that proposal:

    Prosecutor: I think that this is an uncontemplated circum-
    stance . . . . And since neither [party] anticipated this cir-
    cumstance, then we are prepared to start from the very
    beginning. And we would ask [to] . . . start[ ] from the
    beginning . . . .

    The Court: Mr. Harris [defense counsel], do you want to
    back up and start from scratch and go again?

    Defense Counsel: Before a plea agreement, is that what
    he’s asking?

    The Court: He wants to—

    Prosecutor: We want a trial, Your Honor.
                       UNITED STATES v. PONCE                         7
    The Court: He wants to go back to ground zero and let
    y’all begin your negotiations all over again.

    Defense Counsel: No, sir.

    The Court: You want specific performance of this bar-
    gain?

    Defense Counsel: Yes, sir, Your Honor.

Id. at 120-21.

   After Ponce declined, through counsel, the opportunity to withdraw
his guilty plea, the court granted the motion for specific performance
and accepted the plea agreement. Id. at 121. The district court stated,
with regard to the question of additional drug amounts that had come
to the knowledge of the prosecution from the investigation in North
Carolina:

    Under this plea agreement, the defendant has lived up to his
    end of the bargain, he’s entitled to receive the benefit of his
    bargain. It does not happen— and if you think about it you
    will see why — it does not happen that when a person in a
    conspiracy or otherwise pleads guilty and then lives up to
    the plea agreement, that that person is ever then punished or
    penalized for additional drug amounts that come to the
    knowledge of the government.

                               ****

       Because I think that assessment is made at the point the
    guilty plea is entered, and I have heard nothing from proba-
    tion or otherwise to indicate the drug amounts were any-
    thing other, at that time, readily provable in this case, other
    than what the parties agreed to. And that’s why I’m going
    to enforce it that way, and I will sentence accordingly.

Id. at 121-22, 124.
8                      UNITED STATES v. PONCE
                                  B.

   On December 6, 1999, the probation officer provided counsel with
a draft of the presentence investigation report ("PSR"). Supp. J.A. at
21. As to count one, the conspiracy count, the PSR attributed nine
kilograms of powder cocaine to Ponce as relevant conduct, and rec-
ommended a base offense level of 32 (rather than the level 28 con-
templated by the parties’ stipulation as to drug quantity), plus a four-
level enhancement for Ponce’s role as an organizer or leader of the
conspiracy. Id. at 9, 11. Thus, according to the PSR, as to count one,
the recommended final offense level was 36, with a criminal history
category of III, and a resulting sentencing range of 235-293 months.
Id. at 11-13, 19. (A mandatory consecutive 60 month sentence was
the guideline sentence as to count four.) Significantly, the PSR did
not recommend a reduction in Ponce’s offense level for acceptance of
responsibility on the ground that Ponce denied any involvement with
drug trafficking activity in South Carolina other than the three kilo-
gram transaction occurring on December 16, 1998. Id. at 9-11.
Despite objections by Ponce, the probation officer declined to modify
the PSR in advance of the sentencing hearing.

   It is undisputed that the greater drug amounts reported in the PSR
resulted from the probation officer’s independent investigation of
conspiratorial acts which occurred within, and related solely to
cocaine which was delivered within, South Carolina, and not from
any action by the Office of the United States Attorney in South Caro-
lina. J.A. at 134-38. Specifically, Ponce does not contend that the
Office of the United States Attorney violated the plea agreement.

                                  C.

   The district court conducted Ponce’s sentencing hearing on March
27, 2000. Id. at 130-249. At the commencement of the hearing, in
response to Ponce’s objection to the drug quantity set forth in the
PSR, the district court noted that "the stipulation doesn’t bind the
court. No plea agreement stipulation binds the court on drug
amounts." Id. at 136. The district court, echoing the written plea
agreement, then remarked:

    Probation is not limited in their activities by any agreement
    struck by the prosecutor and defense attorney. I want to
                       UNITED STATES v. PONCE                         9
    make that very clear so the Fourth Circuit understands. That
    is critical for them to understand.

       I think sometimes some judges labor under the miscon-
    ception where it is like a state court practice where the pros-
    ecutor and the defense attorney get together and whatever
    they agree to is just rubber stamped by the district court.
    Under the guidelines that is not the case. Probation does an
    independent review for me. Quite frankly, I had occasions
    before when the Government disagreed. The Government
    said that probation came up with — the probation office
    came up with lesser amounts than the Government and the
    defendant stipulated to. It doesn’t matter to me. I go with
    what the facts bear out under the probation officer’s investi-
    gation subject to questioning by the attorneys and objection
    on that point.

      I want to make it very clear probation has never had their
    hands tied. I think there could be some argument if there
    was sort of a back door approach that the Government fun-
    neled and encouraged probation to add numbers to circum-
    vent my ruling.

Id. at 137-38.

   The district court then proceeded to take testimony from the proba-
tion officer and from a member of the conspiracy charged in the
Superseding Indictment regarding the drug amounts attributed to
Ponce in the PSR. The Assistant United States Attorney did not argue
in favor of, or otherwise advocate for, the increased drug quantities
and, indeed, did not question witnesses at the sentencing hearing. Id.
at 229, 236. At the conclusion of the sentencing hearing, the district
court adopted the findings recommended in the PSR and sentenced
Ponce to 293 months incarceration as to count one, the very top of the
applicable guideline range, and to 60 months consecutive as to count
four, for a total sentence of 353 months, id. at 250-51, followed by
five years of supervised release, id. at 252. As provided in the plea
agreement, on the motion of the prosecution, the district court dis-
missed the Original Indictment and the remaining counts of the
10                      UNITED STATES v. PONCE
Superseding Indictment. Id. at 119. Ponce timely noted an appeal on
April 4, 2000. Id. at 255.

                                   III.

   Federal Rule of Criminal Procedure 11(e)(1)(A-C) describes three
categories of plea agreements, two of which, upon acceptance by the
district court, are binding, and one of which is non-binding:

     (1) . . . The attorney for the government and the attorney for
     the defendant . . . may agree that, upon the defendant’s
     entering a plea of guilty or nolo contendere to a charged
     offense, or to a lesser or related offense, the attorney for the
     government will:

          (A) move to dismiss other charges; or

          (B) recommend or agree not to oppose the defen-
          dant’s request for a particular sentence or sentenc-
          ing range, or that a particular provision of the
          Sentencing Guidelines, or policy statement, or sen-
          tencing factor is or is not applicable to the case.
          Any such recommendation or request is not bind-
          ing on the court; or

          (C) agree that a specific sentence or sentencing
          range is the appropriate disposition of the case, or
          that a particular provision of the Sentencing
          Guidelines, or policy statement or sentencing fac-
          tor is or is not applicable to the case. Such a plea
          agreement is binding on the court once it is
          accepted by the court.

FED. R. CRIM. PROC. 11(e)(1)(A-C). Pursuant to Rule 11(e)(2), the
court may accept or reject a plea agreement of the type specified in
subdivisions (e)(1)(A) (calling for a dismissal of remaining indict-
ment counts) or (e)(1)(C) (calling for, inter alia, "a specific sentence
or sentencing range") or may defer its decision pending consideration
of the presentence report. FED. R. CRIM. PROC. 11(e)(2). In contrast,
                        UNITED STATES v. PONCE                        11
subdivision (e)(2) cautions that "[i]f the agreement is of the type spec-
ified in subdivision (e)(1)(B), the court shall advise the defendant that
if the court does not accept the recommendation or request the defen-
dant nevertheless has no right to withdraw the plea." Id. See generally
United States v. Hyde, 520 U.S. 672, 675 (1997) ("Subdivision (e) . . .
divides plea agreements into three types, based on what the Govern-
ment agrees to do . . . .").

   Manifestly, the plea agreement in this case is of the non-binding
variety contemplated by Rule 11(e)(1)(B). For example, paragraph 12
of the agreement states that Ponce "understands that the matter of sen-
tencing is within the sole discretion of the Court." J.A. at 38, ¶ 12.
Paragraph 12 further states: "The Defendant also understands that
Defendant’s sentence has not yet been determined by the Court, and
that any estimate . . . is only a prediction, not a promise and is not
binding on . . . the Probation Office, or the Court." Id. Furthermore,
in summarizing the agreement at the change-of-plea hearing, the
Assistant United States Attorney stated that the defendant understood
that "the matter of sentencing is within the sole discretion of the
court." J.A. at 70. He then informed the magistrate judge of the stipu-
lation as to drug quantity. J.A. at 71, 81. The magistrate judge then
asked: "I assume that is a nonbinding recommendation?" J.A. at 72.
The prosecutor responded: "Yes, sir." Id. After the summary of the
plea agreement was recited, the magistrate judge questioned Ponce
directly: "Mr. Ponce, do you agree that [the prosecutor] has accurately
summarized your plea agreement . . . including the stipulation that has
just been read?" Ponce replied: "Yes, sir." Id. at 74. As we have noted
in a closely analogous context:

    The agreement with respect to [the defendant], however,
    was a "Type B" agreement, where the attorney for the Gov-
    ernment agreed to make a recommendation for a particular
    sentence, which Rule 11(e)(1)(B) clearly provides "shall not
    be binding on the court." If the defendant knowingly and
    voluntarily enters or adheres to a guilty plea with the under-
    standing that the judge will not be bound by the recommen-
    dation of the Government’s attorney, the judge may impose
    a greater sentence than that recommended by the Govern-
    ment.
12                      UNITED STATES v. PONCE
United States v. Jackson, 563 F.2d 1145, 1147 n.4 (4th Cir. 1977).
That reasoning is fully applicable here. It is quite evident that in
respect to the sentencing determinations to be made by the district
court, including the determination of drug quantity, the plea agree-
ment was a non-binding plea agreement.

   Ponce’s contrary argument, that his plea agreement is properly
characterized as a binding plea agreement under Rule 11(e)(1)(C),
places unwarranted reliance on United States v. Veri, 108 F.3d 1311,
1313 (10th Cir. 1997) (holding that a plea agreement specifying a sen-
tence at a particular guideline range is specific enough to fall within
the language of Rule 11(e)(1)(C)). In Veri, the plea agreement specifi-
cally stated that it was made pursuant to Rule 11(e)(1)(C), id., a situa-
tion that does not exist in the present case.

   Nor do we find persuasive Ponce’s argument that the plea agree-
ment was somehow converted into an agreement under Rule
11(e)(1)(C) by virtue of the proceedings on the motion for "specific
performance" he filed after a concern arose as to whether the prosecu-
tion would attempt to avoid its stipulation as to drug quantity when
the North Carolina investigation of Ponce ended without an indict-
ment. Ponce argues that once the district court "accepted" the plea
agreement at the hearing on the motion for specific performance, the
district court was "bound" by the agreement. As support for this con-
tention, Ponce relies heavily on the following statements by the dis-
trict court during the hearing on October 12, 1999:

     The motion for specific performance is granted. The plea
     agreement stands and I accept it.

                                 ***

     I’m going to sentence him based on the understanding that
     he had with the government, the plea agreement he had with
     the government.

                                 ***

     I have heard nothing from probation or otherwise to indicate
     the drug amounts were anything other, at that time, readily
                        UNITED STATES v. PONCE                        13
    provable in this case, other than what the parties agreed to.
    And that’s why I’m going to enforce it that way, and I will
    sentence accordingly.

J.A. at 121, 123, 124 (emphasis added). We reject this contention
because Ponce has lifted these statements by the district court out of
context. The district court made the above statements in reference to
Ponce’s expressed concern that the court might be induced to include
drug amounts in respect to the parallel investigation in North Caro-
lina, not in respect to the South Carolina charges which are the
charges covered by the plea agreement.

   Of far greater import is the fact that at this same hearing, as
explained at length supra, the district court made clear that if the pro-
bation officer developed proof of Ponce’s involvement with a greater
drug quantity in South Carolina than that stipulated to in the plea
agreement, then he would possibly "charge" the defendant with the
greater amount, reiterating that the stipulation in the plea agreement
does not bind the district court. This latter situation then arose at
Ponce’s sentencing hearing on March 27, 2000. Apart from his
unhappiness with the district court’s vigorous examination of the wit-
ness at the sentencing hearing, Ponce does not attack the district
court’s findings as to drug quantity and he does not contend that those
findings are erroneous. Accordingly, nothing that was said and noth-
ing that occurred at the hearing on the motion for specific perfor-
mance precluded the district court from adhering to its announced
practice of looking behind a stipulation as to drug quantity on the rec-
ommendation of a probation officer who undertakes an independent
investigation as to that issue. In sum, as the plea agreement was a
Rule 11(e)(1)(B) non-binding agreement, the district court was free to
make an independent finding as to drug quantity and to impose a sen-
tence upon Ponce in accordance with its findings.

                                  IV.

  Finally, we note that although the drug conspiracy charge to which
Ponce pled guilty did not allege a specific drug quantity, counsel for
Ponce concedes that no issue is presented as to the propriety of
Ponce’s sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000).
See United States v. Cotton, ___ U.S. ___, 122 S. Ct. 1781 (2002).
14                     UNITED STATES v. PONCE
                                  V.

   For the reasons set forth herein, we conclude that we have jurisdic-
tion over this appeal and that the district court did not violate Rule
11(e). The judgment is

                                                         AFFIRMED.
