US v. Antonio Reza, No. 09-4288 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4288 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ANTONIO REZA, Defendant Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:08-cr-00097-NCT-1) Submitted: October 20, 2010 Decided: December 3, 2010 Before DUNCAN, KEENAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Gregory Stuart Smith, Washington, D.C., for Assistant United States for Appellee. LAW OFFICES OF GREGORY S. SMITH, Appellant. Sandra Jane Hairston, Attorney, Greensboro, North Carolina, Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Antonio plea agreement, distribute Reza to cocaine § 841(a)(1), pleaded one guilty, count of hydrochloride (b)(1)(A) (2006). pursuant possession in The Reza to 152 months imprisonment. to a with violation district written intent of 21 court to U.S.C. sentenced His attorney on appeal has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), certifying that there are no meritorious issues for appeal, but asking this court to review whether Reza s guilty plea was properly accepted, whether the district court properly calculated and imposed Reza s sentence, and received ineffective assistance of trial counsel. whether Reza Although Reza was notified of his right to file a pro se supplemental brief, he has not done so. We affirm. Because Reza 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). To establish plain error, Reza must show: (1) an error was made; (2) the error is plain; and (3) the error affects substantial rights. Massenburg, 564 F.3d 337, 342-43 United States v. (4th Cir. 2009) (reviewing unpreserved Rule 11 error). The decision to correct the error lies discretion, within [this court s] and we exercise that discretion only if the error seriously affects the fairness, 2 integrity or public reputation of judicial proceedings. 343 (internal quotation marks omitted). of showing plain error. Id. at Reza bears the burden Id. Our review of the record leads us to conclude that the district court conducted a thorough colloquy well within the mandates of Rule 11. The court ensured that the plea was knowing, voluntary, and supported by an adequate factual basis. We accordingly affirm Reza s conviction. Next, counsel questions the reasonableness of Reza s sentence. under a This court reviews the reasonableness of a sentence deferential abuse-of-discretion United States, 552 U.S. 38, 51 (2007). standard. Gall v. The first step in this review requires us to ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) [(2006)] factors, selecting a [18 U.S.C.] sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence. Id. reasonableness the of We must then consider the substantive sentence, totality of the circumstances. tak[ing] Id. into account the This court presumes on appeal that a sentence within a properly calculated Guidelines range is reasonable. United States v. Bynum, 604 F.3d 161, 168- 69 (4th Cir.), cert. denied, 130 S. Ct. 3442 (2010). 3 We find no error by the district court. properly calculated court s statements Reza s at Guidelines Reza s range. sentencing The court Moreover, hearing the reflect the requisite individual assessment of the facts pertaining to his sentence. We also find the sentence to be substantively reasonable, as it is within the properly calculated Guidelines range. Reza has not overcome the presumption that the sentence is reasonable. See id. Finally, the claim that trial counsel may have rendered ineffective assistance is more appropriately considered in a post-conviction proceeding brought pursuant to 28 U.S.C.A. § 2255 (West Supp. 2010), unless counsel s alleged deficiencies appear conclusively on the record. See United Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). no conclusive evidence on the record that States v. Because we find counsel rendered ineffective assistance, we decline to consider this claim 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 Reza s conviction and sentence. This court requires that counsel inform Reza, in writing, of the right to petition the Supreme Court of the United States for further review. If Reza requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel 4 may move in representation. this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Reza. 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 5
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