US v. Omar Lopez-Verdin, No. 09-4466 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4466 UNITED STATES OF AMERICA, Plaintiff Appellee, v. OMAR LOPEZ-VERDIN, Defendant Appellant.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-00191-NCT-1) Submitted: March 23, 2010 Decided: April 15, 2010 Before GREGORY, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Stacey D. Rubain, QUANDER & RUBAIN, P.A., Winston-Salem, North Carolina, for Appellant. Terry Michael Meinecke, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Omar agreement, Lopez-Verdin to one count pled of guilty, illegal pursuant reentry of to an a plea aggravated felon after removal, in violation of 8 U.S.C. § 1326(a), (b)(2) (2006). The district court sentenced Lopez-Verdin to 78 months imprisonment. Lopez-Verdin now appeals. Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that the appeal questioning whether Lopez-Verdin was supplemental brief raises the declined to file a brief. meritorious 78-month informed but no of has his sentence not right done is to so, grounds reasonable. file and but the a pro se Government We affirm. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for review. Our review of the transcript of the plea hearing leads us to conclude that the district court substantially complied with the mandates of Fed. R. Crim. P. 11 in accepting Lopez-Verdin s guilty plea and that Lopez-Verdin s substantial rights were not infringed. Critically, the transcript reveals that the district court ensured that the plea was supported by an independent factual basis and that Lopez-Verdin entered the plea knowingly and voluntarily attendant consequences. with an understanding of the See United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). 2 Turning to Lopez-Verdin s sentence, we review it under an abuse-of-discretion standard. U.S. 38, 51 (2007). Gall v. United States, 552 In conducting this review, we first examine the sentence for significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] based on § 3553(a) clearly [(2006)] erroneous factors, facts, explain the chosen sentence. Id. or selecting failing to a sentence adequately When rendering a sentence, the district court must make an individualized assessment based on the factors facts to the presented, specific applying the circumstances relevant of the § 3553(a) case and the defendant, and must state in open court the particular reasons supporting its chosen sentence. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and emphasis omitted). If the sentence is free of procedural error, we then consider the tak[ing] into substantive account Gall, 552 U.S. at 51. reasonableness the totality of of the the sentence, circumstances. If the sentence is within the appropriate Guidelines range, this court applies a presumption on appeal that the sentence is reasonable. F.3d 216, 218 (4th Cir. 2008). 3 See United States v. Go, 517 Here, the district court correctly calculated the advisory Guidelines range and heard argument from the parties on the appropriate sentence and allocution from Lopez-Verdin. declining to departure grant on the Lopez-Verdin s basis of request cultural for a assimilation, In downward the court explained that such departure was not appropriate in light of Lopez-Verdin s age upon entry to the United States, criminal record, and knowledge that his return to the United States after deportation was prohibited. Verdin offers any within-Guidelines that the Further, neither counsel nor Lopez- grounds to rebut sentence is reasonable. district court did not the presumption abuse Thus, its that we the conclude discretion in sentencing Lopez-Verdin. We This court writing, of therefore requires the right affirm that to the district counsel petition United States for further review. inform the court s judgment. Lopez-Verdin, Supreme Court of in the If Lopez-Verdin 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 Lopez-Verdin. We dispense with oral argument because the facts and legal contentions are adequately 4 presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5
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