US v. Peribian-Gonzalez, No. 07-4460 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4460 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CUAUTEMOC PERIBIAN-GONZALEZ, a/k/a Juan, a/k/a Gordo, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Beaufort. Sol Blatt, Jr., Senior District Judge. (9:06-cr-00158-SB) Submitted: November 9, 2009 Decided: November 24, 2009 Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. J. Christopher Mills, J. CHRISTOPHER MILLS, LLC, Columbia, South Carolina, for Appellant. Carlton R. Bourne, Jr., Eric John Klumb, Reginald I. Lloyd, Assistant United States Attorneys, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Cuautemoc Peribian-Gonzalez pled guilty, pursuant to a written plea agreement, to one count of conspiracy to possess with intent to distribute and to distribute over 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2006). The district court ultimately Gonzalez to 400 months imprisonment. sentenced Peribian- On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal, but raising the following potential claims: whether the district court complied with Fed. R. Crim. P. 11 in accepting PeribianGonzalez s guilty plea, whether the district court erred in denying his motion to suppress certain evidence, and whether the sentence is supplemental reasonable. pro se brief Peribian-Gonzalez in which he also has filed challenges a the validity of his guilty plea and claims that the district court violated the holding in United States v. Booker, 543 U.S. 220 (2005), by making drug quantity findings that were not set forth in the indictment and proved beyond a reasonable doubt. Our review of the record reveals that the district court fully complied with the requirements of Fed. R. Crim. P. 11 in accepting Peribian-Gonzalez s guilty plea. The court informed Peribian-Gonzalez, through an interpreter, of his right to plead not guilty and have his case tried by a jury. 2 The district court also reviewed the constitutional rights PeribianGonzalez was district court nature of forfeiting the ensured charge by entering that to his guilty which he was The understood Peribian-Gonzalez plea. the pleading guilty, the minimum and maximum possible penalties, the court s obligation to impose a special guidelines scheme. assessment, and the advisory sentencing The court determined that Peribian-Gonzalez was pleading guilty freely and voluntarily and that a factual basis supported the plea. district court in Accordingly, we find no error by the accepting Peribian-Gonzalez s guilty plea. See United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). Next, erred in counsel denying questions whether Peribian-Gonzalez s the district motion to court suppress. However, counsel concedes that Peribian-Gonzalez did not enter a conditional guilty plea, and, therefore, his valid guilty plea constitutes defects. a waiver the antecedent non-jurisdictional Peribian-Gonzalez challenges the sentence In his supplemental pro se brief, he first claims that district findings all See Tollett v. Henderson, 411 U.S. 258, 267 (1973). Finally, imposed. of as court to drug violated quantity the holding without in having Booker those by making facts set forth in the indictment and proved beyond a reasonable doubt. However, this claim is without 3 merit. See Rita v. United States, 551 U.S. 338, 353 (2007) (recognizing that its Sixth Amendment cases do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence ); United States v. Brooks, 524 F.3d 549, 561-62 (4th Cir.) ( [A] sentencing court is entitled to find individualized drug quantities by a preponderance of the evidence, as part of its calculation of an advisory Guidelines sentence is within range, the . . . relevant so long as statutory its resulting range. ), cert. denied, Witherspoon v. United States, 129 S. Ct. 519 (2008). Counsel also questions the reasonableness of PeribianGonzalez s sentence. We review a sentence for reasonableness under an abuse of discretion standard. 552 U.S. 38, requires , 128 S. Ct. 586, 597 (2007). appellate substantive Gall v. United States, consideration reasonableness of of a both the This review procedural sentence. Id. and After determining whether the district court properly calculated the defendant s advisory guidelines range, we must then consider whether the district court considered the § 3553(a) factors, analyzed any arguments presented by the sufficiently explained the selected sentence. parties, and Id. at 596-97; see United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). The record must establish that 4 the district court made an individualized assessment based on the facts presented. Gall, 128 S. Ct. at 597. We find no error by the district court. properly calculated Moreover, the Peribian-Gonzalez s court s statements The court guidelines at range. Peribian-Gonzalez s sentencing hearing reflect an individualized assessment of the facts pertaining to his sentence. We also find the sentence to be substantively reasonable as it is below the statutory maximum of 480 months and below the advisory guideline range of life imprisonment. Peribian-Gonzalez sentence is has not reasonable. overcome See Rita, the 551 presumption U.S. at that 347; the United States v. Smith, 566 F.3d 410, 414 (4th Cir. 2009). In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. court. Accordingly, we affirm the judgment of the district We require that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such filing 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 the client. 5 We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 6

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