UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4765

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HOMERO ARMENDARIZ-TAMEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Malcolm J. Howard, 

Senior District Judge. (2:11-cr-00040-H-2)

Submitted: April 15, 2013 Decided: April 30, 2013

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam 

opinion.

James M. Ayers II, AYERS & HAIDT, P.A., New Bern, North 

Carolina, for Appellant. Jennifer P. May-Parker, Assistant 

United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Homero Armendariz-Tamez appeals the 156-month sentence 

imposed by the district court following his guilty plea, 

pursuant to a written plea agreement, to conspiracy to 

distribute and to possess with intent to distribute more than 

five kilograms of cocaine, in violation of 21 U.S.C. § 846 

(2006), possession of a firearm by an illegal alien, in 

violation of 18 U.S.C. §§ 922(g)(5), 924 (2006), and illegal 

reentry, in violation of 8 U.S.C. § 1326(a) (2006). On appeal, 

Armendariz-Tamez’s 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 the 

district court abused its discretion in applying a two-level 

enhancement for Armendariz-Tamez’s role in the offense.

Armendariz-Tamez has filed a pro se supplemental brief raising 

the same issue. 

The Government has filed a motion to dismiss 

Armendariz-Tamez’s appeal based on the appellate waiver 

provision in the plea agreement. Armendariz-Tamez’s counsel 

opposes the Government’s motion as untimely. In his pro se 

supplemental brief, Armendariz-Tamez argues that his appellate 

waiver was not valid. We grant in part the Government’s motion 

and dismiss Armendariz-Tamez’s appeal of his sentence, and we 
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deny in part the Government’s motion and affirm ArmendarizTamez’s convictions. 

We review de novo 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); see United States v. General, 278 F.3d 389, 400 (4th 

Cir. 2002) (providing standard). The district court’s failure 

to specifically question the defendant’s understanding of the 

waiver provision is relevant to, but not dispositive of, the 

question of whether the waiver was knowing and intelligent. Id. 

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. 

Contrary to counsel’s response in opposition, the 

Government timely raised the appellate waiver issue. See United 

States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (stating 

that government is free to raise appellate waiver in response to 

Anders brief). Additionally, our review of the record leads us 

to conclude that, under the totality of the circumstances,

Armendariz-Tamez’s waiver of appellate rights was knowing and 

intelligent. Thus, the waiver is valid and enforceable. 
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Turning to the scope of the waiver, we conclude that 

the sentencing issue raised in both the Anders brief and the pro 

se supplemental brief falls within the scope of the appellate 

waiver provision, because the 156-month downward departure 

sentence imposed by the district court fell below the Guidelines 

range established at the sentencing hearing. Therefore, we 

grant in part the Government’s motion to dismiss and dismiss 

this portion of the appeal. 

The waiver provision does not, however, preclude our 

review of Armendariz-Tamez’s convictions pursuant to Anders. 

Armendariz-Tamez does not assert any error in the district 

court’s acceptance of his guilty plea. We have reviewed the 

plea colloquy for plain error and have found none. See United 

States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (providing 

standard); see also United States v. Olano, 507 U.S. 725, 732 

(1993) (detailing plain error standard). 

In accordance with Anders, we have reviewed the entire 

record and have found no unwaived and potentially meritorious 

issues for review. We therefore affirm Armendariz-Tamez’s 

convictions. This court requires that counsel inform 

Armendariz-Tamez, in writing, of his right to petition the 

Supreme Court of the United States for further review. If 

Armendariz-Tamez requests that a petition be filed, but counsel 

believes that such a petition would be frivolous, counsel may 
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move in this court for leave to withdraw from representation. 

Counsel’s motion must state that a copy thereof was served on 

Armendariz-Tamez. We dispense with oral argument because the 

facts and legal contentions are adequately presented in the 

materials before this court and argument would not aid the 

decisional process.

AFFIRMED IN PART;

DISMISSED IN PART