US v. Mario Perez-Sanchez, No. 15-4037 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4037 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. MARIO OLIVER PEREZ-SANCHEZ, a/k/a Catfish, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:13-cr-00077-MR-DLH-3) Submitted: September 16, 2015 Decided: October 6, 2015 Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Charles R. Brewer, Asheville, 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 Unpublished opinions are not binding precedent in this circuit.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: Mario Oliver Perez-Sanchez pleaded guilty to conspiracy to possess with intent to distribute and distribute methamphetamine, in violation of 21 U.S.C. § 846 (2012). district court sentenced Perez-Sanchez imprisonment and he now appeals. to 151 months The of Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), questioning assistance whether and substantively trial whether counsel sentence the reasonable. rendered is Perez-Sanchez ineffective procedurally filed supplemental brief raising additional issues. * a pro and se Finding no error, we affirm. Appellate rendered counsel ineffective ineffective assistance first questions assistance. of To counsel, a whether trial prove a defendant counsel claim must of show (1) “that counsel’s performance was deficient,” and (2) “that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). second prong of the test in the context of a Under the conviction following a guilty plea, a defendant can show prejudice only by demonstrating “a reasonable probability that, but for counsel’s * We have reviewed the issues raised in Perez-Sanchez’s pro se supplemental brief and conclude they lack merit. 2 errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Moreover, we may address a claim of ineffective assistance on direct appeal conclusively Baldovinos, only appears 434 reviewed assistance does record. 233, the not the the on F.3d thoroughly if 239 record lawyer’s (4th United States Cir. 2006). conclude and conclusively ineffectiveness that appear on the We v. have ineffective record. We therefore decline to address this claim on direct appeal. Counsel next questions whether the district court erred in applying an enhancement for a leadership role in the conspiracy under the Sentencing Guidelines. Counsel further whether the sentence is substantively reasonable. sentence for standard. reasonableness, applying an abuse questions We review a of discretion Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Lymas, 781 F.3d 106, 111 (4th Cir. 2015). In so doing, we first examine the sentence for any procedural error, Lymas, 781 F.3d at 111-12, and then consider the substantive reasonableness of the sentence; if the sentence is within the Guidelines reasonableness. (2007) range, we apply a presumption of See Rita v. United States, 551 U.S. 338, 346-59 (upholding presumption of Guidelines sentence). 3 reasonableness for within In addition, in reviewing the district court’s calculations under the Guidelines, “we review the district court’s legal conclusions de novo and its factual findings for clear error.” United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010) (internal quotation marks omitted). We will “find clear error only if, on the entire evidence, we are left with the definite and firm conviction that a mistake has been committed.” Id. at 631 (internal quotation marks omitted). Under the Guidelines, a four-level enhancement applies to the offense level if the defendant was an organizer or leader of a criminal organization that involved five or more participants, or was otherwise extensive. U.S. Sentencing Guidelines Manual § 3B1.1(a); see also United States v. Cameron, 573 F.3d 179, 184 (4th Cir. 2009). The district court must find the enhancement applicable by a preponderance of the evidence. United States v. Grubbs, 585 F.3d 793, 803 (4th Cir. 2009). We conclude that the district advisory range. court correctly calculated the Guidelines In addition, Perez-Sanchez has failed to overcome the presumption of reasonableness applied to his within-Guidelines sentence. We have examined the entire record in accordance with the requirements of Anders and have found no meritorious issues for appeal. court. Accordingly, we affirm the judgment of the district This court requires that counsel inform Perez-Sanchez, 4 in writing, of the right to petition the Supreme Court of the United States for further review. that a petition be filed, but If Perez-Sanchez requests 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 Perez-Sanchez. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid in the decisional process. AFFIRMED 5
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