                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4805


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JOSE GINEZ HERNANDEZ, a/k/a Gumby,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (5:07-cr-00063-gec-jgw-15)


Submitted:    May 15, 2009                     Decided:    June 5, 2009


Before WILKINSON and      GREGORY,   Circuit   Judges,    and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Aaron L. Cook, AARON L. COOK, PC, Harrisonburg, Virginia, for
Appellant.   Julia C. Dudley, United States Attorney, Donald R.
Wolthuis, Assistant United States Attorney, Roanoke, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                  Jose Ginez Hernandez pled guilty pursuant to a written

plea       agreement      to     conspiracy       to    manufacture,     distribute,        and

possess with intent to distribute cocaine hydrochloride, cocaine

base,       and    methamphetamine,          in       violation    of   21    U.S.C.      § 846

(2006).            Hernandez        was     sentenced        to    seventy-six        months’

imprisonment. ∗           Finding no error, we affirm.

                  On appeal, counsel contends that Hernandez’s sentence

is substantively unreasonable.                    The Government asserts that this

court should refuse to consider the appeal based on the appeal

waiver provision in Hernandez’s plea agreement.                              Alternatively,

the     Government         contends        that       the   sentence    imposed      by     the

district court is reasonable.

                  Under    the     terms     outlined       in    the   plea       agreement,

Hernandez “agree[d] that after [his] full and fair sentencing

hearing, [he would] not then appeal any sentencing guidelines

factors or the Court’s application of the sentencing guidelines

factors to the facts of [his] case.”                         Hernandez further agreed

that       he   was   “knowingly      and     voluntarily         waiving    any    right    to


       ∗
       Although Hernandez was subject to a statutory mandatory
minimum of ten years, see 21 U.S.C.A. § 841(b)(1)(A) (West 1999
& Supp. 2008), application of the safety-valve permitted the
district court to “impose a sentence in accordance with the
applicable guidelines without regard to [the] statutory minimum
sentence.” U.S. Sentencing Guidelines Manual § 5C1.2(a) (2007).



                                                  2
appeal   sentencing      guidelines          factors”   and        that     he   was

“voluntarily willing to rely on the Court in sentencing [him]

under the Sentencing Guidelines.”

            A defendant may, in a valid plea agreement, waive the

right to appeal under 18 U.S.C. § 3742 (2006).                United States v.

Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).               “Whether a defendant

has effectively waived the right to appeal is an issue of law

that we review de novo.”         United States v. Blick, 408 F.3d 162,

168 (4th Cir. 2005).

     Where, as here, the United States seeks enforcement of
     an appeal waiver and there is no claim that the United
     States   breached  its  obligations  under   the  plea
     agreement, we will enforce the waiver to preclude a
     defendant from appealing a specific issue if the
     record establishes that the waiver is valid and that
     the issue being appealed is within the scope of the
     waiver.

Id. (internal citations omitted).              An appeal waiver is valid if

“the defendant knowingly and intelligently agreed to waive the

right to appeal.”     Id. at 169.            However, “[a]n appeal waiver is

not knowingly or voluntarily made if the district court fails to

specifically    question    the     defendant       concerning        the     waiver

provision of the plea agreement during the [Fed. R. Crim. P.] 11

colloquy and the record indicates that the defendant did not

otherwise   understand     the    full       significance     of    the     waiver.”

United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005)

(internal quotation marks and citation omitted).


                                         3
            At     the    Rule    11    hearing,         it    was     established        that

Hernandez    was    twenty-seven        years       old    and     had    completed       high

school.     Hernandez confirmed that he understood English with the

aid of an interpreter.             He did not have a history of mental

illness and was not under the influence of any medications or

controlled substances at the time of the hearing.                                  Hernandez

acknowledged       that    he    reviewed         the    plea    agreement        with    his

attorney, voluntarily agreed to its terms, and signed it.                                  The

magistrate judge specifically questioned Hernandez regarding the

appeal waiver, and Hernandez responded that he understood its

effects.     Therefore, we conclude the appeal waiver is both valid

and enforceable.

            However,      because       the       appeal      waiver      is    limited    to

procedural       challenges,           counsel’s           claim         of     substantive

unreasonableness falls outside the scope of the waiver and will

be considered on appeal.               “Assuming that the district court’s

sentencing decision is procedurally sound, the appellate court

should    then     consider      the    substantive           reasonableness        of    the

sentence imposed . . . tak[ing] into account the totality of the

circumstances, including the extent of any variance from the

Guidelines range.”         Gall v. United States, 128 S. Ct. 586, 597

(2007).     Appellate review of a district court’s imposition of a

sentence,     “whether      inside,       just          outside,     or        significantly

outside the Guidelines range,” is for abuse of discretion.                                Id.

                                              4
at 591.     Sentences within the applicable Guidelines range may be

presumed by the appellate court to be reasonable.                            United States

v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).

            Counsel        contends     that      the    sentence       is    greater       than

necessary to accomplish the goals of 18 U.S.C. § 3553(a) (2006).

The district court considered multiple factors in fashioning the

sentence,       including        Hernandez’s        role     in    the       offense,        the

magnitude       of   the      conspiracy,         the     sentences       of        other   co-

conspirators,        Hernandez’s       need    for      substance     abuse         treatment,

and the application of the safety-valve.                         Moreover, Hernandez’s

sentence,       which   is    within    the       advisory    Guidelines            range   and

below     the     applicable        statutory        minimum,       may        be     presumed

reasonable by this court.                Thus, the district court did not

abuse its discretion in imposing the chosen sentence.

            Accordingly, we affirm the judgment of the district

court.     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




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