                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4072



UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

          v.


RODRIGO CALDERO MARTINEZ,

                     Defendant - Appellant.


                            No. 07-4431



UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

          v.


RENE DE LA CRUZ,

                     Defendant - Appellant.


Appeals from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, District Judge.
(7:05-cr-00028-gec)


Submitted:   February 5, 2008                Decided:   April 18, 2008


Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.
No. 07-4072 affirmed; No. 07-4431 dismissed by unpublished per
curiam opinion.


William A. Mitchell, Jr., BRENNAN, SULLIVAN & MCKENNA, LLP,
Greenbelt, Maryland; Mark D. Kidd, OSTERHOUDT, PRILLAMAN, NATT,
HELSCHER, YOST, MAXWELL & FERGUSON, PLC, Roanoke, Virginia, for
Appellants. John L. Brownlee, United States Attorney, R. Andrew
Bassford, Assistant United States Attorney, Roanoke, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




                              - 2 -
PER CURIAM:

            Rene De La Cruz and Rodrigo Caldero Martinez appeal

following   their   convictions    and     sentences    for    conspiracy   to

distribute methamphetamine, in violation of 21 U.S.C. § 846 (2000).

De La Cruz contends that his guilty plea, entered pursuant to North

Carolina v. Alford, 400 U.S. 25 (1970), and containing an appeal

waiver, was not made knowingly, voluntarily, and intelligently, and

that the district court erred in accepting it.                Martinez argues

that the district court erred in enhancing his sentence based upon

facts that were determined by the court by a preponderance of the

evidence, relying in part on statements by witnesses who did not

testify at his sentencing hearing.

            A defendant may waive the right to appeal if that waiver

is knowing and intelligent.       United States v. Amaya-Portillo, 423

F.3d 427, 430 (4th Cir. 2005).           This court generally enforces

appeal waivers.     United States v. Johnson, 410 F.3d 137, 151 (4th

Cir. 2005). “An 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

Rule 11 colloquy and the record indicates that the defendant did

not otherwise understand the full significance of the waiver.” Id.

(internal quotations and citation omitted).            To determine whether

a waiver is knowing and intelligent, we examine “the totality of

the circumstances, including the experience and conduct of the


                                   - 3 -
accused, as well as the accused’s educational background and

familiarity    with    the    terms      of    the   plea     agreement.”        United

States v. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal

quotation    marks    and    citation         omitted).       The    validity        of   an

appellant’s waiver of his right to appeal is a question of law that

we review de novo.      United States v. Blick, 408 F.3d 162, 168 (4th

Cir. 2005).

            De La Cruz is a native of Mexico, where he completed the

eleventh    grade,    and    he    has   limited       abilities     in   the   English

language.    De La Cruz was advised by two attorneys concerning his

guilty plea, one of whom speaks Spanish.                      Both attorneys were

present at De La Cruz’s change of plea hearing and indicated their

belief that he understood the significance and implications of his

Alford plea.    At the hearing, counsel for the Government explained

that De La Cruz was waiving his right to direct appeal under the

terms of his plea agreement.             The district court questioned De La

Cruz   extensively     regarding         his    plea    and    the    appeal     waiver

provision.      When    the       district      court     questioned      De    La    Cruz

concerning his understanding of the appeal waiver provision, he

initially stated, “I don’t really understand what was explained to

me, the sentence they are going to give me, whether I’m going to

fight it or--what was that?”              The district court then explained

that De La Cruz’s sentence would not be determined until after he

entered his guilty plea.             The court asked whether De La Cruz


                                         - 4 -
understood that, pursuant to his plea agreement, he was waiving his

right to appeal the sentence that would be imposed and the court’s

decision to accept his guilty plea, to which De La Cruz answered

“Yes.”    At each point during the plea hearing, when De La Cruz

indicated he did not understand a particular element of his plea,

the district court reiterated or further explained its question,

and De La Cruz affirmatively answered that he understood that

portion of his plea.    Based upon the totality of the circumstances

surrounding De La Cruz’s guilty plea, his plea was made knowingly,

voluntarily, and intelligently.          Accordingly, we dismiss De La

Cruz’s appeal, No. 07-4431, based upon the appeal waiver in his

plea agreement.

           The district court applied a two-level enhancement to

Martinez’s sentence based upon his possession of a firearm during

the offense, pursuant to U.S. Sentencing Guidelines Manual (“USSG”)

§ 2D1.1(b)(1) (2006), and a three-level enhancement based upon

Martinez’s role as a manager or supervisor in the conspiracy, but

not an organizer or leader, pursuant to USSG § 3B1.1(b) (2006).

Martinez objected to the enhancements at his sentencing hearing,

but the district court applied them based upon testimony from a

special   agent   for   the   Drug    Enforcement   Administration   that

Martinez’s role in the conspiracy evolved to that of a manager over

time and that Martinez exchanged methamphetamine for firearms on

two occasions during the course of the conspiracy.            On cross-


                                     - 5 -
examination, the special agent admitted that he did not directly

take    part   in     Martinez’s     transactions        with      lower-level

methamphetamine distributors and that he was aware of the firearms

transactions   based    upon    statements       from    persons      who   were

unavailable to testify.

           Martinez    cites   Crawford     v.   Washington,    541    U.S.   36

(2004), for the proposition that the district court erred in

imposing a sentence based upon testimonial hearsay that was not

subjected to cross-examination.        In Crawford, the Supreme Court

held that the Confrontation Clause prohibits the admission at trial

of     testimonial     statements     that       are     not    subject       to

cross-examination.     Id. at 50-51.        The rule in Crawford has not

been extended to sentencing hearings.             Accordingly, Martinez’s

argument is meritless, and we affirm his sentence, No. 07-4072.

           In sum, we dismiss De La Cruz’s appeal and affirm the

sentence imposed by the district court as to Martinez. 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.



                                                        No. 07-4072 AFFIRMED
                                                       No. 07-4431 DISMISSED




                                    - 6 -
