United States of America v. Abel Parada-Garcia

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4173
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ABEL PARADA-GARCIA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Elizabeth City. Louise W. Flanagan, District Judge. (2:20-cr-00032-FL-2)
Submitted: October 13, 2022 Decided: October 18, 2022
Before NIEMEYER and AGEE, Circuit Judges, and KEENAN, Senior Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam opinion.
ON BRIEF: W. Michael Dowling, THE DOWLING FIRM PLLC, Raleigh, North
Carolina, for Appellant. David A. Bragdon, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Abel Parada-Garcia pleaded guilty, pursuant to a written plea agreement, to
conspiracy to distribute and possess with intent to distribute 50 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and distribution
of 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A);
18 U.S.C. § 2. The district court sentenced Parada-Garcia to 204 months’ imprisonment,
below his advisory Sentencing Guidelines range. On appeal, Parada-Garcia’s counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no
meritorious grounds for appeal but questioning whether the district court correctly
determined the quantity of methamphetamine attributable to Parada-Garcia when
calculating his Guidelines range. Parada-Garcia was informed of his right to file a pro se
supplemental brief, but he has not done so. The Government has moved to dismiss the
appeal pursuant to the appellate waiver in Parada-Garcia’s plea agreement. We affirm in
part and dismiss in part.
“We review an appellate waiver de novo to determine whether the waiver is
enforceable” and “will enforce the waiver if it is valid and if the issue being appealed falls
within the scope of the waiver.” United States v. Boutcher, 998 F.3d 603, 608 (4th Cir.
2021) (internal quotation marks omitted). An appellate waiver is valid if the defendant
enters it “knowingly and intelligently, a determination that we make by considering the
totality of the circumstances.” Id. “Generally though, if a district court questions a
defendant regarding the waiver of appellate rights during the [Fed. R. Crim. P. 11] colloquy
and the record indicates that the defendant understood the full significance of the waiver,

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the waiver is valid.” United States v. McCoy, 895 F.3d 358, 362 (4th Cir. 2018) (internal
quotation marks omitted).
Our review of the record confirms that Parada-Garcia knowingly and intelligently
waived his right to appeal his sentence, with limited exceptions not applicable here.* And
we conclude that the sentencing issue counsel pursues in the Anders brief falls squarely
within the scope of the waiver.
In accordance with Anders, we have reviewed the entire record in this case and have
found no potentially meritorious grounds for appeal that are outside of the appellate waiver
or not waivable by law. We therefore grant in part the Government’s motion to dismiss
and dismiss the appeal as to all issues covered by the appellate waiver. We also deny in
part the motion to dismiss and otherwise affirm. This court requires that counsel inform
Parada-Garcia, in writing, of the right to petition the Supreme Court of the United States
for further review. If Parada-Garcia requests that a petition be filed, but counsel believes
* Parada-Garcia’s plea agreement explains that he waives the right to appeal his
conviction and sentence with some limited exceptions. During the Rule 11 hearing,
however, the magistrate judge explained only that Parada-Garcia was waiving his right to
appeal his sentence. See Fed. R. Crim. P. 11(b)(1)(N) (requiring court to accurately
summarize terms of appellate waiver before accepting guilty plea). We are satisfied that
the magistrate judge’s plain error did not affect Parada-Garcia’s substantial rights given
Parada-Garcia’s confirmation that he had read and understood the plea agreement and the
straightforward language of the appellate waiver provision. Put simply, nothing in the
record suggests that Parada-Garcia would not have pleaded guilty had the magistrate judge
correctly summarized the appellate waiver. See United States v. Sanya, 774 F.3d 812,
815-16 (4th Cir. 2014). In addition, we have otherwise reviewed the knowing and
voluntary nature of Parada-Garcia’s guilty plea, as that issue is not waivable by law, see
United States v. Attar, 38 F.3d 727, 732-33 & n.2 (4th Cir. 1994), and conclude that
Parada-Garcia’s guilty plea is valid, see United States v. DeFusco, 949 F.2d 114, 116 (4th
Cir. 1991).

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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 Parada-Garcia.
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

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