UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4004

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

CARLOS MORALES LOPEZ, a/k/a Tatone,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Statesville. Richard L. 

Voorhees, District Judge. (5:09-cr-00049-RLV-DCK-2)

Submitted: April 23, 2012 Decided: May 10, 2012

Before KING, KEENAN, and WYNN, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam 

opinion.

Faith S. Bushnaq, BUSHNAQ LAW OFFICE, PLLC, Charlotte, North 

Carolina, for Appellant. Anne M. Tompkins, United States 

Attorney, Melissa L. Rikard, Assistant United States Attorney, 

Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Carlos Lopez appeals his conviction and 210-month 

sentence for conspiracy to distribute and possess with intent to

distribute at least five kilograms of cocaine and at least fifty 

grams of cocaine base, in violation of 21 U.S.C. § 846 (2006). 

On appeal, counsel filed a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), asserting that there are no 

meritorious grounds for appeal but questioning whether an 

incomplete transcript of the guilty plea hearing renders 

effective appellate review impossible, and whether the district 

court erred in failing to sufficiently explain Lopez’s sentence. 

Lopez filed a pro se supplemental brief claiming that the 

district court erred in enhancing his sentence based on his 

coconspirator’s possession of a firearm.

The Government initially declined to file a response 

brief. Pursuant to our review under Anders, we directed the 

Government to file a brief addressing the adequacy of the 

district court’s explanation for the sentence. In the resulting 

brief, the Government not only addresses the sentencing issue 

but asserts that the appellate waiver provision in the plea 

agreement bars any claim of sentencing error, and urges us to 

enforce the waiver and dismiss the appeal. We affirm in part 

and dismiss in part.
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We review de novo the validity of a defendant’s waiver 

of appellate rights. United States v. Blick, 408 F.3d 162, 168 

(4th Cir. 2005). “A defendant may waive his right to appeal if 

that waiver is the result of a knowing and intelligent decision 

to forgo the right to appeal.” United States v. Amaya-Portillo, 

423 F.3d 427, 430 (4th Cir. 2005) (internal quotation marks 

omitted). To determine whether the waiver is knowing and 

intelligent, we look to “the totality of the circumstances, 

including the experience and conduct of the 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 

omitted). We will enforce a valid waiver so long as “the issue 

being appealed is within the scope of the waiver.” Blick, 408 

F.3d at 168.

In the plea agreement, Lopez agreed to waive all 

appellate rights relating to his conviction and sentence except 

for claims of ineffective assistance of counsel or prosecutorial 

misconduct. Moreover, the agreement specifically states that 

Lopez waives his “to appeal whatever sentence is imposed.” Our 

review of the record convinces us that Lopez’s waiver was 

knowing and intelligent. We are well able, even with the 
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partial transcript of the guilty plea hearing,* to conclude that 

under the totality of the circumstances, Lopez’s waiver of 

appellate rights was knowing and voluntary.

Turning to the scope of the waiver, we conclude that 

the sentencing issues raised by counsel in the Anders briefs and 

by Lopez in the pro se supplemental brief fall within the scope 

of the appellate waiver provision, and we dismiss the appeal as 

to those claims.

In accordance with Anders, we have thoroughly examined 

the entire record for any other potentially meritorious issues 

outside the scope of Lopez’s appeal waiver and have found none.

Therefore we affirm in part as to any potential claims not 

foreclosed by the waiver provision, and dismiss the appeal in 

part as to those claims encompassed by the waiver. This court 

requires that counsel inform Lopez, in writing, of the right to 

petition the Supreme Court of the United States for further 

review. If Lopez requests that a petition be filed, but counsel 

believes that such a petition would be frivolous, then counsel 

may move in this court for leave to withdraw from 

representation. Counsel’s motion must state that a copy thereof 

was served on Lopez. We dispense with oral argument because the 

 * The transcript is incomplete as it was created from a 

digital recording that ended prior to the conclusion of the 

hearing.
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facts and legal contentions are adequately presented in the 

materials before the Court and argument would not aid the 

decisional process.

AFFIRMED IN PART;

DISMISSED IN PART