US v. Giovanni Viruel, No. 09-4399 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4399 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GIOVANNI VIRUEL, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, District Judge. (3:08-cr-00590-CMC-10) Submitted: October 14, 2010 Decided: December 2, 2010 Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Jonathan Harvey, Columbia, South Carolina, for Appellant. James Chris Leventis, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Mark C. Moore, Stanley Duane Ragsdale, Assistant United States Attorneys, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Giovanni Viruel appeals the forty-eight month sentence imposed following his conviction for use of a telecommunication facility in a drug trafficking crime, in violation of 21 U.S.C. § 843(b) (2006), and illegal reentry, in violation of 8 U.S.C. § 1326(a) (2006). Viruel s attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), contending there are no meritorious issues on appeal, but questioning whether the district court erred in failing to apply a two-level reduction pursuant to U.S. Sentencing § 2D1.1(b)(11) (2008). * pro se supplemental Guidelines Manual (USSG) Though informed of his right to file a brief, Viruel has not Government has elected not to file a brief. done so, and the We affirm. Regardless of whether the sentence imposed is inside or outside review the the [g]uidelines sentence under range, an the appellate abuse-of-discretion Gall v. United States, 552 U.S. 38, 51 (2007). court must standard. Appellate courts are charged with reviewing sentences for both procedural and substantive reasonableness. Id. * Though counsel cites USSG § 2D1.1(b)(7) in his brief, that section involves the application of a two-level enhancement for distribution of an anabolic steroid and masking agent, not at issue in this case. The remainder of counsel s brief makes it clear that counsel intended to cite to USSG § 2D1.1(b)(11). 2 In assess determining whether the procedural district reasonableness, court properly defendant s advisory guidelines range. we first calculated Id. at 49-50. the We then determine whether the district court failed to consider the 18 U.S.C. § 3553(a) (2006) factors and any arguments presented by the parties, treated the guidelines as mandatory, selected a sentence based on clearly erroneous facts, sufficiently explain the selected sentence. or failed Id. at 51; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). we review taking the into substantive account extent the of reasonableness totality any of variance to of the from the Finally, sentence, circumstances, including the the [g]uidelines range. Pauley, 511 F.3d at 473 (quoting Gall, 552 U.S. at 51). A district court s factual findings, including those that serve as a basis for a sentencing enhancement, are reviewed for clear error, see United States v. Kiulin, 360 F.3d 456, 460 (4th Cir. 2004); a district court s legal conclusions regarding whether to apply an enhancement are reviewed de novo, see United States v. Layton, 564 F.3d 330, 334 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009). Under USSG § 2D1.1(b)(11), if a defendant meets the criteria set forth in subdivisions (1)-(5) of subsection (a) of § 5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in 3 Certain Cases), his offense level should burden of be decreased establishing by he two levels. satisfies Viruel the § bears 5C1.2 the criteria. United States v. Thompson, 554 F.3d 450, 455 (4th Cir.), cert denied, 130 S. Ct. 191 (2009). Because Viruel fails to make such a showing, we conclude that the district court correctly declined to apply a two-level reduction pursuant to USSG § 2D1.1(b)(11). In accordance remainder of appeal. Therefore, court. writing, the with record we and Anders, we find meritorious affirm the no have judgment reviewed of issues the the for district This court requires that counsel inform his client, in of his right to petition United States for further review. the Supreme Court of the If the client 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 the client. 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 4
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