UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4150

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JORGE NOEL SAGASTUME, a/k/a Jorge Noel Sagastume-Perez,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Peter J. Messitte, Senior District 

Judge. (8:14-cr-00137-PJM-1)

Submitted: October 29, 2015 Decided: November 18, 2015

Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam 

opinion.

Megan E. Coleman, MARCUSBONSIB, LLC, Greenbelt, Maryland, for 

Appellant. Kelly O. Hayes, OFFICE OF THE UNITED STATES 

ATTORNEY, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Jorge Noel Sagastume appeals his conviction and 65-month 

sentence imposed following his guilty plea to conspiracy to 

distribute and possess with intent to distribute 500 grams or 

more of cocaine, in violation of 21 U.S.C. § 846 (2012). On 

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

386 U.S. 738 (1967), stating that there are no meritorious 

grounds for appeal, but setting forth arguments challenging the 

validity of Sagastume’s guilty plea. The Government has filed a 

motion to dismiss the appeal on the ground that Sagastume 

explicitly waived his right to appeal his conviction and 

sentence in the plea agreement. Although advised of his right 

to do so, Sagastume has not filed a pro se supplemental brief. 

For the reasons that follow, we affirm in part and dismiss in 

part. 

A criminal defendant may waive the right to appeal if that 

waiver is knowing and intelligent. United States v. Poindexter, 

492 F.3d 263, 270 (4th Cir. 2007). Generally, if the district 

court fully questions a defendant regarding the waiver of his 

right to appeal during the Fed. R. Crim. P. 11 colloquy and a 

review of the record reveals that the defendant understood the 

full import of the waiver, the waiver is both valid and 

enforceable. United States v. Copeland, 707 F.3d 522, 528 (4th 

Cir. 2013 (2013). “The law ordinarily considers a waiver 
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knowing, intelligent, and sufficiently aware if the defendant 

fully understands the nature of the right and how it would 

likely apply in general in the circumstances — even though the 

defendant may not know the specific detailed consequences of 

invoking it.” United States v. Thornsbury, 670 F.3d 532, 537 

(4th Cir. 2012) (internal alteration, quotation marks, and 

emphases omitted). Whether a defendant validly waived his right 

to appeal is a question of law we review de novo. United States 

v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). 

Our review of the record leads us to conclude that 

Sagastume knowingly and voluntarily waived his right to appeal 

his conviction and sentence. Thus, review of any claims raised 

by Sagastume that fall within the scope of his broad waiver is 

barred. 

On appeal, counsel questions the validity of Sagastume’s 

guilty plea. Specifically, he questions whether the district 

court adequately complied with the mandates of Rule 11 in 

accepting Sagastume’s guilty plea and whether the district court 

erred in failing to withdraw his guilty plea when Sagastume 

stated during sentencing that he was not aware that a mandatory 

minimum five years sentence would be imposed and that his 

attorney had informed him that Sagastume could receive a 

sentence as low as three years’ imprisonment.
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Sagastume’s appellate waiver does not foreclose a challenge 

to the voluntariness of his plea. See, e.g., United States v. 

Attar, 38 F.3d 727, 732–33 & n.2 (4th Cir. 1994) (applying 

rule). Because Sagastume did not move to withdraw his plea, we

review his Rule 11 hearing for plain error. Henderson v. United 

States, 133 S. Ct. 1121, 1126-27 (2013); United States v. 

Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (discussing 

standard). In the guilty plea context, a defendant demonstrates 

that an error affected his substantial rights by “show[ing] a 

reasonable probability that, but for the error, he would not 

have entered the plea.” United States v. Massenburg, 564 F.3d 

337, 343 (4th Cir. 2009) (internal quotation marks omitted). We 

conclude that none of these claims are colorable. 

The Rule 11 hearing contained three omissions. The 

district court failed to inform Sagastume: (1) that false 

statements under oath could result in his prosecution for 

perjury; (2) that the court could order restitution, and (3) 

that the court would consider the 18 U.S.C. § 3553(a) (2012) 

factors in fashioning his sentence. Having reviewed the record, 

however, we conclude that the court’s failure to discuss these 

three things did not affect Sagastume’s substantial rights, and 

there is no indication that Sagastume would not have pled guilty 

had the district court’s plea colloquy been more exacting. See

Massenburg, 564 F.3d at 343. 
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Sagastume’s last challenge to the knowing nature of his 

plea sounds in ineffective assistance. Specifically, he claims 

that the district court should have allowed him to withdraw his 

plea when he informed the court at sentencing that he was 

unaware of the statutory mandatory minimum of five years and 

that counsel had informed him that he could receive a sentence 

as low as three years’ imprisonment. Unless an attorney’s 

ineffectiveness conclusively appears on the face of the record, 

ineffective assistance claims are not generally addressed on 

direct appeal. United States v. Galloway, 749 F.3d 238, 241 

(4th Cir.), cert. denied, 135 S. Ct. 215 (2015). Instead, such 

claims should be raised in a motion brought pursuant to 28 

U.S.C. § 2255 (2012), in order to permit sufficient development 

of the record. United States v. Baptiste, 596 F.3d 214, 216 n.1 

(4th Cir. 2010). 

Here, Sagastume’s assertion that he was not made aware of 

the statutory mandatory minimum of five years is simply belied 

by his statements at the Rule 11 hearing and the plea agreement 

he knowingly signed. Furthermore, because the record does not 

conclusively establish ineffective assistance of counsel, see

Strickland v. Washington, 466 U.S. 668, 687-88 (1984), we 

decline to review these claims on direct appeal.

In accordance with Anders, we have reviewed the entire 

record in the case and have found no meritorious issues for 
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appeal outside the scope of the appellate waiver. Accordingly, 

we grant the Government’s motion to dismiss Sagastume’s appeal 

of his sentence and affirm his conviction. This court requires 

that counsel inform Sagastume, in writing, of the right to 

petition the Supreme Court of the United States for further 

review. If Sagastume 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 Sagastume. 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