US v. Jose Aguilar-Rivera, No. 08-5260 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5260 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSE LUIS AGUILAR-RIVERA, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:03-cr-00004-RLV-CH-9) Submitted: July 23, 2010 Before MOTZ and Circuit Judge. AGEE, Decided: Circuit Judges, and August 17, 2010 HAMILTON, Senior Affirmed by unpublished per curiam opinion. James E. Quander, Jr., QUANDER & RUBAIN, P.A., Winston-Salem, 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 Unpublished opinions are not binding precedent in this circuit.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: Pursuant to a plea agreement, Jose Luis Aguilar-Rivera pled guilty to conspiracy to possess with intent to distribute quantities U.S.C. of § 846 cocaine and (2006). cocaine The base, district in court violation sentenced of 21 Aguilar- Rivera to 127 months imprisonment, a term within the advisory guidelines range. Counsel Aguilar-Rivera timely appealed. has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), finding no meritorious grounds for appeal but questioning whether the district court erred by imposing a two-level firearm enhancement under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2008). pro se supplemental brief challenging Aguilar-Rivera filed a his guilty plea and asserting claims of ineffective assistance of appellate counsel. Turning first to Aguilar-Rivera s pro se challenge to his guilty plea, he contends that his plea was not knowing and voluntary because he waived numerous concessions by the Government. rights without any Because he did not move in the district court to withdraw his guilty plea, any error in the Fed. R. Crim. P. 11 hearing is reviewed for plain error. United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). appropriately conducted Rule 11 proceeding creates a An strong presumption that the plea is final and binding. United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992). Our review of 2 the record convinces us that the district court substantially complied with the requirements of Rule 11 in accepting AguilarRivera s guilty plea. Moreover, contrary to his claim that he received no concessions for his plea, in exchange for the plea, the Government successfully moved for the dismissal of two other charges pending against Aguilar-Rivera. granted him acceptance of a three-level reduction responsibility. We Furthermore, the court in hold offense that level for Aguilar-Rivera s claim that his guilty plea was not knowing and voluntary is meritless. Defense Aguilar-Rivera s counsel sentence, questions the specifically reasonableness the two-level of firearm enhancement under USSG § 2D1.1(b)(1), but ultimately concludes that the sentence is reasonable. sentence for standard. Gall v. United States, 552 U.S. 38, 51 (2007). review reasonableness An appellate court reviews a requires under consideration of an abuse-of-discretion both substantive reasonableness of a sentence. the This procedural and First, the court Id. must assess whether the district court properly calculated the guidelines range, considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. Id. at 49-50; see United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) ( [A]n individualized explanation must 3 accompany every sentence. ); United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). An extensive explanation is not required as long as the appellate court is satisfied that [the district court] has considered the parties arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority. United States v. Engle, 592 F.3d 495, 500 (4th Cir. 2010) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)), petition for cert. filed, 78 U.S.L.W. 3764 (U.S. 2010) (No. 09-1512). is procedurally substantive totality of reasonable, reasonableness the Even if the sentence the of court the sentence, circumstances to see must consider the examin[ing] whether the the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a). United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). Under increase defendant a USSG § 2D1.1(b)(1), defendant s possessed § 2D1.1(b)(1). a offense firearm level during a district by a two drug court levels must if offense. the USSG The enhancement is proper when the weapon was possessed in connection with drug activity that was part of the same course conviction. of conduct or common scheme as the offense of United States v. Manigan, 592 F.3d 621, 628-29 (4th Cir. 2010) (internal quotation marks omitted). Whether enhancement under the USSG district § court 2D1.1(b)(1) 4 properly is applied reviewed for the clear error. United States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001). Under a clear error standard of review, this court will reverse only if left with the definite and firm conviction that a mistake has been committed. F.3d 326, 336-37 (4th Cir. United States v. Harvey, 532 2008) (internal quotation marks district court omitted). Aguilar-Rivera improperly applied the contends that enhancement the because the only evidence supporting it was hearsay evidence from a single officer who recounted evidence and testimony from a co-conspirator s trial that Aguilar-Rivera shot and wounded two co-conspirators during the course of the conspiracy. However, it is well-established that there is no bar to the use of hearsay at sentencing . . . [and a] trial court may properly consider uncorroborated hearsay evidence that the defendant has had an opportunity to rebut or explain. United States v. Alvarado Perez, ___ F.3d ___, ___ n.4, WL 2010 (internal 2612677, quotation at *12 n.4 (4th marks and citation Cir. July omitted). 1, We 2010) have reviewed the record with these standards in mind and conclude that the district court did not clearly err by finding that a preponderance of the evidence supported the firearm enhancement under USSG § 2D1.1(b)(1). The Rivera s district guidelines court range in properly all 5 other calculated respects. AguilarWe note, however, that the district court did not make an adequate individualized assessment as required by Carter, 564 F.3d at 330. The sentence district imposed court other provided than to no state explanation that it for was the imposing sentence [p]ursuant to the Sentencing Reform Act of 1984 and United States v. Booker, 543 U.S. 220 (2005). Nonetheless, because the district court sentenced Aguilar-Rivera within the advisory guidelines range, this unpreserved error did not affect his substantial rights. 514, 518 (4th Cir. See United States v. Angle, 254 F.3d 2001) (stating that, in the sentencing context, an error affects substantial rights if the sentence imposed was longer than that to which he would otherwise be subject ); see also Lynn, 592 F.3d at 580 (finding that defendant s substantial rights were not affected because he was sentenced at the low end of the applicable guidelines range and counsel did not argue for a sentence outside that range). Having determined that there is no reversible procedural error, the court must also consider the substantive reasonableness of the sentence, taking into account the totality of the circumstances. Gall, 552 U.S. at 51. Because Aguilar- Rivera s sentence is within the appropriate guidelines range, we presume on appeal that it is reasonable. 517 F.3d 216, 218 (4th Cir. 2008). United States v. Go, The presumption may be rebutted by a showing that the sentence is unreasonable when 6 measured against Montes-Pineda, the 445 § 3553(a) F.3d 375, quotation marks omitted). presumption. committed no United factors. 379 (4th Cir. States 2006) v. (internal Aguilar-Rivera has not rebutted that Accordingly, significant we hold procedural that or the district substantive court error in sentencing Aguilar-Rivera. Finally, in his pro se supplemental brief, AguilarRivera claims he received ineffective assistance of appellate counsel. Claims of ineffective assistance of counsel are generally not cognizable on direct appeal. See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Rather, to allow for adequate development of the record, a defendant must bring such claims in a 28 U.S.C.A. § 2255 (West Supp. 2010) motion, unless the record conclusively establishes ineffective assistance. United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999); King, 119 F.3d at 295. Because the record does not conclusively show that Aguilar-Rivera s counsel was ineffective, we decline to consider Aguilar-Rivera s claims on direct appeal. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Aguilar-Rivera s Aguilar-Rivera s motion for an conviction extension second pro se supplemental brief is denied. of and time sentence. to file a This court requires that counsel inform Aguilar-Rivera, in writing, of the right to 7 petition the Supreme Court of the United States for further review. If Aguilar-Rivera 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 Aguilar-Rivera. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 8
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