US v. Abraham Torres, No. 08-4656 (4th Cir. 2008)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4656 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ABRAHAM HERNANDEZ TORRES, a/k/a Beto, a/k/a Chavez, 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-2) Submitted: December 11, 2008 Decided: December 17, 2008 Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. John J. Cacheris, DOZIER, MILLER, POLLARD & MURPHY, LLP, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Abraham Hernandez Torres pleaded guilty, pursuant to a plea agreement, intent to to one distribute count heroin of and conspiracy cocaine, U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2006). in to possess violation with of 21 The district court sentenced him to 121 months of imprisonment, and Torres timely appealed. On appeal, counsel filed an Anders 1 brief, in which he states there are no meritorious issues for appeal, but questions whether Torres waived his right to appeal, and whether the district court erred in denying Torres motion for a downward variance sentence. The Government declined to file a brief. We affirm. Because the Government declined to argue that Torres plea agreement appeal waiver bars his appeal, we do not consider sua sponte the effect of the waiver. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). We review a sentence imposed by the district court for procedural and substantive discretion standard. (2007). reasonableness under an abuse-of- Gall v. United States, 128 S. Ct. 586, 597 The court considers the totality of the circumstances in assessing the substantive reasonableness of a sentence. 1 Anders v. California, 386 U.S. 738 (1967). 2 Id. This court presumes that a sentence imposed within the properly calculated Guidelines range is reasonable. United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008); see Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007) (upholding presumption reasonableness for within-Guidelines sentence). of In considering the district court s application of the Guidelines, this court reviews factual findings for clear error and legal conclusions de novo. United States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006). The district court correctly calculated Torres Guidelines 2 range and imposed a sentence within that range and within the statutory maximum. month greater months. than the The 121-month sentence is one applicable statutory See 21 U.S.C. § 841(b)(1)(A). minimum of 120 In the absence of a Government motion for a departure, the district court lacked authority to sentence Torres below the statutory minimum. United States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005). 3 Our review of the record leads us to conclude that Torres sentence is reasonable. 2 U.S. Sentencing Guidelines Manual (2007). 3 Counsel suggests that the court could revisit the decision in Robinson. A panel of this court may not, however, overrule a prior published decision of the court. See United States v. Ruhe, 191 F.3d 376, 388 (4th Cir. 1999). 3 In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We have reviewed supplemental the brief arguments and find asserted them to be in Torres without pro merit. therefore affirm Torres conviction and sentence. se We This court requires that counsel inform Torres, in writing, of the right to petition the Supreme review. If Torres Court of requests the that United a States petition for be further filed, but counsel believes that such a petition would be frivolous, then counsel may move representation. in this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Torres. 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 4
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