UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-4969

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

AGUSTIN PARDO MACIAS,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Robert J. Conrad, 

Jr., Chief District Judge. (3:07-cr-00233-RJC-4)

Submitted: April 19, 2010 Decided: May 14, 2010

Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Denzil H. Forrester, Charlotte, North Carolina, for Appellant. 

Edward R. Ryan, United States Attorney, Charlotte, North 

Carolina, Amy E. Ray, Assistant United States Attorney, 

Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Agustin Pardo Macias pleaded guilty, pursuant to a 

plea agreement, to one count of conspiracy to distribute and 

possess with intent to distribute heroin and cocaine, in 

violation of 21 U.S.C. §§ 841(a)(1), 846 (2006). The plea 

agreement included a waiver of Macias’ right to appeal his 

conviction or sentence, except for claims of prosecutorial 

misconduct or ineffective assistance of counsel. The district 

court sentenced Macias to seventy months of imprisonment, and he 

timely appealed. 

On appeal, Macias contends that the Government’s late 

filing of objections to the draft presentence investigation 

report (PSR) breached the plea agreement and constituted 

prosecutorial misconduct. He argues that the appeal waiver 

should not apply to bar his assertions of sentencing error. The 

Government argues that there was no prosecutorial misconduct and 

the appeal waiver should be enforced.

This court reviews the validity of an appeal waiver de 

novo, United States v. Brown, 232 F.3d 399, 402-03 (4th Cir. 

2000), and will uphold a waiver of appellate rights if the 

waiver is valid and the issue being appealed is covered by the 

waiver. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 

2005). A waiver is valid if the defendant’s agreement to the 
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waiver was knowing and voluntary. United States v. Marin, 961 

F.2d 493, 496 (4th Cir. 1992); United States v. Wessells, 936 

F.2d 165, 167 (4th Cir. 1991).

To determine whether a waiver is knowing and 

intelligent, this court examines “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 and citation omitted). Generally, if a district 

court fully questions a defendant regarding the waiver of 

appellate rights during the Fed. R. Crim. P. 11 colloquy, the 

waiver is valid. Wessells, 936 F.2d at 167-68.

In this case, Macias does not assert that his waiver 

was not voluntary, and our review of the record leads us to 

conclude that his waiver was knowing and voluntary. Moreover, 

the issues he seeks to raise on appeal are within the scope of 

the waiver. We also conclude that the Government’s late filing 

of objections to the PSR neither breached the plea agreement nor 

amounted to prosecutorial misconduct. Thus, the exceptions to 

Macias’ waiver of his right to appeal do not apply.

Accordingly, we dismiss the appeal. We dispense with 

oral argument because the facts and legal contentions are 
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adequately presented in the materials before the court and 

argument would not aid the decisional process.

DISMISSED