UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4542

ANA LILIA GAMBOA-FELIX,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Henry C. Morgan, Jr., District Judge.

(CR-99-23)

Argued: May 10, 2001

Decided: September 17, 2001

Before WILLIAMS and KING, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion. 

COUNSEL

ARGUED: Mark Francis Fleming, San Diego, California, for Appellant. Joseph E. DePadilla, Assistant United States Attorney, Norfolk,

Virginia, for Appellee. ON BRIEF: Jeremy D. Warren, San Diego,

California, for Appellant. Helen F. Fahey, United States Attorney,

Robert J. Seidel, Jr., Assistant United States Attorney, Fernando

Groene, Assistant United States Attorney, Norfolk, Virginia, for

Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Ana Lilia Gamboa-Felix appeals the sentence imposed on her in

the Eastern District of Virginia after she pleaded guilty to two charges

related to a methamphetamine conspiracy. Gamboa-Felix contends

that the district court erred in concluding that she could not be sentenced below both the applicable statutory minimum and the prescribed United States Sentencing Guidelines range.1

 The Government

contends that this appeal must be dismissed, asserting that GamboaFelix’s plea agreement bars any appeal from being prosecuted.

Because Gamboa-Felix waived her appellate rights, we dismiss her

appeal. 

I.

A.

Between February 1997 and October 1998, Gamboa-Felix and her

husband, Juan Alberto Felix, packaged and shipped large quantities

of methamphetamine from the San Diego area, where they resided, to

Virginia Beach. On October 14, 1998, during a search of GamboaFelix’s Oceanside, California home and the surrounding grounds,

Government agents recovered approximately two dozen pounds of

methamphetamine and nineteen firearms, as well as military-grade

plastic explosives, detonators, ammunition, and shipping materials. 

A grand jury in the Eastern District of Virginia returned a sixty-sixcount indictment, on February 19, 1999, against Gamboa Felix, her

husband, and twenty-eight other defendants. Gamboa-Felix was

named in three counts. On March 31, 1999, pursuant to a written plea

1We refer to the United States Sentencing Commission Guidelines

Manual as the "Guidelines" or "USSG." 

2 UNITED STATES v. GAMBOA-FELIX
agreement, she pleaded guilty to two of the charges — conspiracy to

possess with intent to distribute and distribution of at least one kilogram of a mixture containing methamphetamine, in violation of 21

U.S.C. § 846, and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). In connection with these offenses,

Gamboa-Felix was deemed accountable for 102.1 kilograms of

methamphetamine mixture and $525,220 in laundered drug proceeds.2

B.

Under the plea agreement, the Government retained the discretion

to request a departure from the Guidelines if Gamboa-Felix cooperated in the prosecution of co-conspirators. The agreement specifically

provided that 

the United States reserves its option to seek any departure

from the applicable sentencing guidelines including any

departure below the mandatory minimum, pursuant to Section 5K of the Sentencing Guidelines and Policy Statements

and Title 18, United States Code, Section 3553(e), or Rule

35(b) of the Federal Rules of Criminal Procedure, if in its

sole discretion, the United States determines that the defendant has provided substantial assistance and that such assistance has been completed and such a departure is

appropriate. 

J.A. 164-65. 

The plea agreement also contained a waiver of Gamboa-Felix’s

right to appeal her impending sentence. The agreement explicitly provided that 

2Gamboa-Felix, her husband, and other co-conspirators also were

indicted, on October 23, 1998, in the Southern District of California for

related offenses within that jurisdiction. At the time Gamboa-Felix’s plea

was entered in Virginia, she already had pleaded guilty in California, on

March 22, 1999, to eighteen counts of aiding and abetting the distribution of 152.4 kilograms of methamphetamine, and possession with intent

to distribute those narcotics. 

UNITED STATES v. GAMBOA-FELIX 3
[t]he defendant is aware that Title 18, United States Code,

Section 3742 affords a defendant the right to appeal the sentence imposed. Acknowledging all this, the defendant knowingly waives the right to appeal any sentence within the

maximum provided in the statute(s) of conviction (or the

manner in which that sentence was determined) on the

grounds set forth in Title 18, United States Code, Section

3742 or on any ground whatever, in exchange for the concessions made by the United States in this plea agreement.

J.A. 162. Moreover, Gamboa-Felix expressly attested that the plea

agreement was knowingly and voluntarily entered, and that she understood and consented to all of its terms. Gamboa-Felix’s lawyer certified that he had explained every part of the agreement to her, and that

her decision to plead guilty was an informed and voluntary choice. 

On March 31, 1999, prior to accepting Gamboa-Felix’s guilty plea,

the district court conducted a plea colloquy, pursuant to Rule 11 of

the Federal Rules of Criminal Procedure, to review in detail the provisions of the written plea agreement. The court ascertained, after asking Gamboa-Felix a lengthy series of questions, that she

comprehended the substance and ramifications of the appeal waiver.

In particular, Gamboa-Felix confirmed that she understood that she

was waiving the right to challenge her eventual sentence on appeal.

Gamboa-Felix was sentenced to 135 months’ imprisonment on

each count, the low end of the Guidelines range. The sentences were

then reduced, pursuant to the Government’s § 5K1.1 motion for

downward departure, based on Gamboa-Felix’s substantial assistance

in the prosecution of another offender. Ultimately, the court imposed

the mandatory minimum sentence of 120 months for the methamphetamine conspiracy and a concurrent 67-month sentence for the money

laundering conspiracy. At the sentencing hearing Gamboa-Felix’s

counsel argued that the court was authorized to sentence her below

the statutory minimum based on the conjunction between § 5K1.1 and

the safety valve provision of 18 U.S.C. § 3553(f).3 At a subsequent

3Section 5K1.1 of the Guidelines authorizes the sentencing court to

depart from the Guidelines, at the Government’s request, if "the defen4 UNITED STATES v. GAMBOA-FELIX
hearing on the issue, however, Gamboa-Felix’s attorney was unable

to proffer any authority that the district court could sentence GamboaFelix to less than the statutory minimum. Indeed, at that time, her

lawyer conceded that the court was not empowered to depart below

the statutory minimum. 

On appeal, Gamboa-Felix contends that the district court erroneously concluded that it was not authorized to impose a sentence

beneath the statutory minimum on the drug conspiracy count. The

Government contends that this appeal must be dismissed, asserting

that Gamboa-Felix waived her right to appeal in her plea agreement.

II.

We have consistently held that, with a few exceptions, "a defendant

may not appeal his sentence if his plea agreement contains an express

and unqualified waiver of the right to appeal, unless that waiver was

unknowing or involuntary." United States v. Brown, 232 F.3d 399,

403 (4th Cir. 2000); see also United States v. Marin, 961 F.2d 493

(4th Cir. 1992); United States v. Bowden, 975 F.2d 1080 (4th Cir.

1992). However, an express knowing waiver will not bar appeal of a

sentence imposed in excess of the maximum penalty provided by law

or a sentence based on a constitutionally impermissible factor such as

race. See Brown, 232 F.3d at 403. 

In light of the express attestations of Gamboa-Felix and her lawyer

in the plea agreement, as well as the thorough plea colloquy conducted by the district court, see supra Part I.B, there is no question

that Gamboa-Felix knowingly and voluntarily agreed to the appeal

dant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense." Title 18, United

States Code, Section 3553(f), the safety valve, mandates that, where a

defendant satisfies its requirements, "the court shall impose a sentence

pursuant to guidelines promulgated by the United States Sentencing

Commission...without regard to any statutory minimum sentence[.]"

Gamboa-Felix contends that the conjunction between these two provisions permitted the court to impose a sentence below both the statutory

minimum and the prescribed Guidelines range. 

UNITED STATES v. GAMBOA-FELIX 5
waiver. Additionally, her sentence did not exceed the maximum penalty provided by law, i.e., the plea agreement specifically conditioned

the appeal waiver on the penalty being within the relevant statutory

maximum. Finally, there is no evidence that Gamboa-Felix’s sentence

was based on a constitutionally impermissible factor such as race. 

Gamboa-Felix also advances a pair of other theories for invalidating the waiver. First, she insists that enforcing the provision "would

be a grave injustice and therefore a violation of due process, particularly where the district court’s error was profound and prejudicial."

Appellant’s Br. at 11. Second, Gamboa-Felix contends that, because

the Government breached the plea agreement, the waiver is invalid.

We address each of these contentions in turn. 

A.

Gamboa-Felix cites no binding authority in support of her first

assertion, that, because she was prejudiced by the district court’s purported sentencing error, enforcement of the appeal waiver would violate her due process rights. Indeed, to the contrary, we have

consistently enforced knowing and voluntary appeal waivers, even

where the defendant has claimed that his sentence contravened the

Guidelines. See, e.g., Brown, 232 F.3d at 405-06 (concluding that an

appeal waiver barred the defendant’s challenge to the district court’s

imposition of a career offender enhancement); Marin, 961 F.2d at 496

(determining that a waiver precluded the defendant’s appeal contesting an upward departure). 

B.

Gamboa-Felix also asserts that the appeal waiver is not enforceable

because the Government breached the plea agreement. We recently

concluded "that a party’s waiver of the right to seek appellate review

is not enforceable where the opposing party breaches a plea agreement." United States v. Bowe, ___ F.3d ___, No. 00-4269, 2001 WL

792161, at *6 (4th Cir. July 13, 2001). Gamboa-Felix maintains that

the Government breached the plea agreement in two ways: (a) by

refusing to make a motion, pursuant to 18 U.S.C. § 3553(e), for

departure beneath the statutory minimum; and (b) by advising the

6 UNITED STATES v. GAMBOA-FELIX
court that it otherwise had no authority to sentence Gamboa-Felix

below the mandatory minimum of 120 months. 

With regard to the first point, the plain language of the plea agreement establishes that it was within the Government’s sole discretion

to seek — or not to seek — sentencing relief for Gamboa-Felix pursuant to USSG § 5K1.1, 18 U.S.C. § 3553(e), or Rule 35(b) of the Federal Rules of Criminal Procedure. The agreement specifically

provided that 

the United States reserves its option to seek any departure

from the applicable sentencing guidelines including any

departure below the mandatory minimum, pursuant to Section 5K of the Sentencing Guidelines and Policy Statements

and Title 18, United States Code, Section 3553(e), or Rule

35(b) of the Federal Rules of Criminal Procedure, if in its

sole discretion, the United States determines that the defendant has provided substantial assistance and that such assistance has been completed and such a departure is

appropriate. 

J.A. 164-65 (emphasis added). 

Second, even assuming that an intentional misstatement of the law

by the Government would breach the plea agreement, there is no evidence that the Government engaged in such conduct. During the sentencing hearing the Government contended that the court could not

sentence Gamboa-Felix below the statutory minimum. The record

does not reveal any intentional misrepresentation, but rather that the

Government merely proffered its analysis of the law — an interpretation adopted by the district court and even Gamboa-Felix’s own counsel. 

III.

Gamboa-Felix also advances a related claim that is not barred by

the appeal waiver — that her attorney failed to provide effective

assistance of counsel at her sentencing hearing, in violation of her

Sixth Amendment right to counsel. See United States v. Attar, 38 F.3d

UNITED STATES v. GAMBOA-FELIX 7
727, 732-33 (4th Cir. 1994) (holding that a general appeal waiver

does not bar appeal of the sentence on the ground that proceedings

following entry of the guilty plea were conducted in contravention of

the Sixth Amendment). Gamboa-Felix bases this claim on her attorney’s concession that the district court was not authorized to impose

a sentence below the mandatory minimum. 

We review claims of ineffective assistance of counsel on direct

appeal "if and only if it conclusively appears from the record that

[the] attorney did not provide effective assistance." United States v.

Martinez, 136 F.3d 972, 979 (4th Cir. 1998); United States v. Smith,

62 F.3d 641, 651 (4th Cir. 1995), and it is not clear on this record that

Gamboa-Felix’s attorney was constitutionally ineffective. That is, we

have not yet had occasion to determine whether the safety valve provision of 18 U.S.C. § 3553(f), in conjunction with a Government

motion for downward departure based on substantial assistance,

USSG § 5K1.1, permits a sentence below both the statutory minimum

and the prescribed Guidelines range. As such, it is not conclusively

apparent from the record that Gamboa-Felix’s counsel failed to provide effective assistance when he conceded that the court could not

sentence her below the statutory minimum. 

Gamboa-Felix’s ineffective assistance of counsel claim is therefore

properly raised only in collateral proceedings. 

IV.

For the foregoing reasons, we must dismiss this appeal.

APPEAL DISMISSED

8 UNITED STATES v. GAMBOA-FELIX