                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4546


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

          v.

ROBERTO FLORENCIO DELA CRUZ,

                 Defendant - Appellant.



                              No. 13-4627


UNITED STATES OF AMERICA,

                       Plaintiff – Appellee,

          v.

ROBERTO FLORENCIO DELA CRUZ,

                       Defendant - Appellant.




Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr.,    Senior    District   Judge.        (1:12-cr-00362-NCT-3;
1:13-cr-00049-NCT-1)


Submitted:   April 29, 2014                     Decided:   May 7, 2014


Before KING, SHEDD, and AGEE, Circuit Judges.
Dismissed in part, affirmed in part by unpublished per curiam
opinion.


Christopher    F. Cowan, LAW OFFICE OF CHRIS F. COWAN, Columbus,
Ohio, for     Appellant.    Ripley Rand, United States Attorney,
Sandra J.      Hairston,   Assistant   United  States  Attorney,
Greensboro,   North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                 2
PER CURIAM:

               In these consolidated appeals, Roberto Florencio Dela

Cruz appeals the fifty-eight month sentence imposed following

his guilty plea to conspiracy to distribute 100 kilograms or

more of marijuana, in violation of 21 U.S.C. § 846 (2012) (the

“marijuana conspiracy sentence,” or “Case No. 1:12-cr-00362”),

and the consecutive twenty-seven month sentence imposed for his

violation of the terms of his supervised release on a prior

conviction          (the       “revocation            sentence,”        or        “Case        No.

1:13-cr-00049”).            On appeal, Dela Cruz raises numerous claims of

procedural and substantive sentencing error.                            He also asserts

that      his        counsel        provided          constitutionally            ineffective

assistance at sentencing.                 The Government asks this court to

dismiss Dela Cruz’s appeal of the marijuana conspiracy sentence,

except    as    to    his    ineffective         assistance        claim,    based    on       the

appellate       waiver      provision       in       his    plea   agreement.        For       the

reasons     that       follow,       we   dismiss           the    appeal    of     Case       No.

1:12-cr-00362 in part and affirm as to all remaining issues.

                                                 I.

               We    review    de    novo    “the          validity   and    effect       of   an

appellate waiver.”             United States v. Thornsbury, 670 F.3d 532,

537 (4th Cir. 2012).             We will enforce an appellate waiver that

was entered knowingly and intelligently if the issue appealed

falls within the waiver’s scope.                       United States v. Poindexter,

                                                 3
492 F.3d 263, 270 (4th Cir. 2007).                        Dela Cruz does not contest

the knowing and voluntary nature of his waiver.

              “Plea        bargains    rest    on    contractual          principles,       and

each party should receive the benefit of its bargain.”                                United

States v. Blick, 408 F.3d 162, 173 (4th Cir. 2005) (internal

quotation marks omitted).                  However, “a defendant who waives his

right    to   appeal        does    not    subject    himself       to    being     sentenced

entirely at the whim of the district court.”                             United States v.

Marin,    961     F.2d      493,     496    (4th    Cir.    1992).         Even     where   an

appellate waiver provision is valid, we will not enforce the

waiver to preclude “a few narrowly-construed errors” that fall

automatically outside its scope.                    United States v. Copeland, 707

F.3d 522, 530 (4th Cir.), cert. denied, 134 S. Ct. 126 (2013)

(internal       quotation      marks       omitted).         This    “narrow        class    of

claims” encompasses those claims “the defendant could not have

reasonably contemplated when the plea agreement was executed.”

Poindexter, 492 F.3d at 270 (internal quotation marks omitted).

“[T]he     type       of    ‘illegal’        sentence       which    a      defendant       can

successfully          challenge        despite       an     appeal       waiver     involves

fundamental       issues,          including    claims       that    a     district     court

exceeded        its        authority,        premised        its         sentence     on      a

constitutionally impermissible factor such as race, or violated

the post-plea right to counsel.”                          Copeland, 707 F.3d at 530

(internal quotation marks and alterations omitted).

                                               4
              Dela Cruz asserts that the challenges he raises to his

marijuana conspiracy sentence are fundamental in character and

of a type that he could not have contemplated when he entered

his    plea    agreement.         Additionally,            he     asserts,      because     the

sentencing proceedings he received were not part of the bargain

he reached with the Government, they fall outside the scope of

his appellate waiver.

              We are not persuaded by these arguments.                               The fact

that Dela Cruz did not anticipate the specific sentencing errors

that    he    alleges     does    not     preclude         their       valid    waiver.      An

appellate      waiver     remains       valid       as   long     as    the    defendant    was

aware    of    the   general      consequences             of    waiving       his   appellate

rights,       even   if    he     did     not       know        its    “specific      detailed

consequences.”          See Thornsbury, 670 F.3d at 537 (emphasis and

internal quotation marks omitted).                       Nor do we find these errors

to be so “fundamental” in character as to be unwaivable.                                     He

alleges neither a sentence wholly outside the court’s authority

nor constitutional defects in the sentencing process, but rather

prosaic sentencing errors that fall squarely within the scope of

his waiver.

              Because     we     conclude       Dela       Cruz’s      challenges      to   the

marijuana conspiracy sentence are within the waiver’s scope, we

dismiss Dela Cruz’s appeal of Case No. 1:12-cr-00362 in part.

Dela Cruz’s claim of ineffective assistance of counsel, which is

                                                5
exempted   from     the    appellate     waiver’s    scope      according      to   its

plain terms, will be addressed in Part III.

                                         II.

           Dela Cruz generally asserts that the district court

imposed a plainly unreasonable revocation sentence by running

the   revocation          sentence     consecutively       to     the       marijuana

conspiracy   sentence.          He    specifically    alleges         the   following

errors: the court’s apparent reliance on the wrong presentence

report     during      the      sentencing       hearing,        its        inadequate

consideration     of   the     18    U.S.C.    § 3553(a)    (2012)      factors     and

insufficient      analysis      of    defense    counsel’s       arguments,         the

court’s    failure        to   explain     its    reasons       for     imposing     a

consecutive sentence and its presumption that the Guidelines’

recommendation for a consecutive sentence would result in an

appropriate sentence, and a consecutive sentence greater than

necessary to satisfy the goals of sentencing.

           In reviewing a sentence imposed following revocation

of supervised release, we “take[] a more deferential appellate

posture concerning issues of fact and the exercise of discretion

than reasonableness review for guidelines sentences.”                          United

States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007) (internal

quotation marks omitted).            We will affirm a revocation sentence

if it is within the prescribed statutory range and not plainly

unreasonable.       United States v. Webb, 738 F.3d 638, 640 (4th

                                          6
Cir.    2013).           We    engage         in    a   two-step         review    process,       first

considering          whether              the         sentence           is      procedurally        or

substantively            unreasonable              by       applying      the     same     principles

employed    in      review          of    original          sentences.           United    States    v.

Crudup, 461 F.3d 433, 438 (4th Cir. 2006).                                    Only if we find the

sentence       procedurally              or     substantively            unreasonable       must     we

determine whether it is “plainly” so.                              Moulden, 478 F.3d at 657.

               A   revocation             sentence          is    procedurally      reasonable       if

the    district          court       has      considered           the    applicable       § 3553(a)

factors and the policy statements contained in Chapter Seven of

the    Guidelines,            Crudup,           461     F.3d       at     440,     and     adequately

explained the chosen sentence, United States v. Thompson, 595

F.3d    544,       547    (4th       Cir.        2010).           A   revocation         sentence    is

substantively reasonable if the district court stated a proper

basis for imposing that sentence.                                  Crudup, 461 F.3d at 440.

Ultimately, the district court has broad discretion to revoke

supervised release and impose a sentence up to the statutory

maximum.       Moulden, 478 F.3d at 657.

               Where the sentencing court imposes multiple sentences

simultaneously,               the        court        may        order    the      terms     to     run

concurrently or consecutively.                          See 18 U.S.C. § 3584(a) (2012).

In    electing      between         these          options,       the    court     is    required    to

consider the § 3553(a) factors “as to each offense for which a

term of imprisonment is being imposed.”                               Id. § 3584(b) (2012).

                                                        7
               The Guidelines state that any revocation sentence of

imprisonment “shall be ordered to be served consecutively to any

sentence of imprisonment that the defendant is serving.”                                      U.S.

Sentencing Guidelines Manual (“USSG”) § 7B1.3(f), p.s. (2012);

see USSG § 7B1.3 cmt. n.4 (recommending “that any sentence of

imprisonment         for       a    criminal       offense       that    is   imposed        after

revocation of . . . supervised release be run consecutively to

any     term    of     imprisonment           imposed       upon     revocation”).            “We

consider the commentary and policy statements set forth in the

Guidelines to be authoritative . . . to the extent that they are

not inconsistence with an applicable statute . . . .”                                    United

States v. Medina-Campo, 714 F.3d 232, 237 n.4 (4th Cir.), cert.

denied, 134 S. Ct. 280 (2013).

               In announcing a sentence, “the district court need not

robotically tick through § 3553(a)’s every subsection” but “must

place     on    the     record         an    individualized          assessment”        of    the

defendant       that       “provide[s]             a     rationale       tailored      to      the

particular      case       at       hand     and       adequate    to    permit      meaningful

appellate      review.”             United     States      v.     Carter,     564    F.3d     325,

329-30 (4th Cir. 2009) (internal quotation marks omitted).                                      A

court     imposing         a       revocation      sentence       need      not     provide    as

detailed an explanation as that required in imposing an original

sentence, but it “still must provide a statement of reasons for

the   sentence        imposed.”             Thompson,      595    F.3d   at   547     (internal

                                                   8
quotation   marks     omitted).      The      court’s   explanation         must    be

sufficient “to satisfy an appellate court that it has considered

the parties’ arguments and has a reasoned basis for exercising

its own legal decisionmaking authority in light of § 3553(a).”

United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir.

2010) (internal quotation marks and alterations omitted).

            We have thoroughly reviewed the record and find Dela

Cruz’s   challenges    unavailing.           First,   the    record    establishes

that the district court relied on the correct presentence report

in sentencing Dela Cruz.          Although the court made reference to

an incorrect report when describing the applicable Guidelines

range, the error was noted and the correct range was quickly

established.        Further,       the       sentencing       transcript      amply

demonstrates    the      court’s     familiarity            with     Dela    Cruz’s

presentence report and its use in determining his sentence.                        Nor

do we find error in the court’s analysis and explanation of the

sentence.    While the court did not provide an explicit analysis

of its reasons for imposing a consecutive revocation sentence,

the court’s statements to both counsel and Dela Cruz indicated

that it was familiar with his history and characteristics and

considered those factors in sentencing him.                        Counsel readily

conceded that requests for concurrent revocation sentences are

“rarely granted” and provided no additional argument to justify

such a request.        Ultimately, we find the court’s explanation

                                         9
adequate      to    demonstrate         its       consideration        of     the    relevant

§ 3553(a) factors and counsel’s salient arguments, as well as a

sufficiently individualized assessment to support the revocation

sentence.

              Although sentencing court may not “presume that the

appropriate        sentence       in    a     given      case   will        come    from   the

Guidelines,” Mendoza-Mendoza, 597 F.3d at 216 (citing Rita v.

United States, 551 U.S. 338, 351 (2007)), we discern no Rita

error in this case.                The record demonstrates that the court

fully understood its authority to impose concurrent sentences

but simply exercised its discretion not to do so.                             Nor has Dela

Cruz   met    his    burden       to    establish        that   the    within-Guidelines

revocation sentence is substantively unreasonable, even when run

consecutively to the marijuana conspiracy sentence.                                See United

States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012) (recognizing

that    this        court     presumes           within-Guidelines            sentence      is

reasonable).        We therefore find no error, plain or otherwise, in

Dela Cruz’s revocation sentence.                      Thus, we affirm the sentence

imposed in Case No. 1:13-cr-00049.

                                              III.

              Dela Cruz asserts that his counsel was ineffective in

failing      to    argue    for     a    mitigating        role   adjustment          to   his

Guidelines        range,    pursuant        to    USSG   § 3B1.2.       To     establish     a

claim of ineffective assistance of counsel, the defendant must

                                                 10
show   (1)    that    counsel’s         performance      fell    below    an   objective

standard of reasonableness in light of prevailing professional

norms, and (2) that the deficient performance was prejudicial.

Strickland v. Washington, 466 U.S. 668, 687 (1984).                            Claims of

ineffective assistance of counsel are not cognizable on direct

appeal unless the lawyer’s ineffectiveness appears conclusively

on the record.        United States v. Powell, 680 F.3d 350, 359 (4th

Cir.    2012).           Because         ineffective        assistance         does       not

conclusively        appear   on    the     record       before   us,    we    decline      to

address      Dela    Cruz’s       ineffective       assistance         claim       at    this

juncture, without prejudice to his ability to raise this issue

in a 28 U.S.C. § 2255 (2012) motion.

                                            IV.

             Accordingly,         we    dismiss     Dela    Cruz’s     appeal       of    his

marijuana conspiracy sentence in Case No. 1:12-cr-00362, affirm

his    criminal      judgment      in    Case     No.    1:12-cr-00362        as    to    all

remaining      issues,       and       affirm     the     judgment       in    Case       No.

1:13-cr-00049.        Although we grant Dela Cruz’s motion to file an

addendum to his reply brief, we are unpersuaded by his argument

as to its significance.                We dispense with oral argument because

the facts and legal contentions are adequately presented in the




                                            11
materials   before   this   court   and   argument   would   not   aid   the

decisional process.


                                                      DISMISSED IN PART;
                                                        AFFIRMED IN PART




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