US v. Avelino Osorio-Cortez, No. 08-4527 (4th Cir. 2010)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on January 21, 2009.
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4527 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AVELINO OSORIO-CORTEZ, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., Senior District Judge. (1:06-cr-00373-NCT-1) Submitted: February 17, 2010 Before MOTZ and Circuit Judge. SHEDD, Circuit Decided: Judges, and April 2, 2010 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North Carolina, for Appellant. Sandra Jane Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Avelino Osorio-Cortez pled guilty pursuant to a plea agreement to conspiracy to distribute cocaine hydrochloride, 21 U.S.C.A. §§ 841(b)(1)(A), 846 (West 1999 & Supp. 2009). The district court sentenced Osorio-Cortez to eighty-seven months imprisonment, a guidelines range. sentence at the low end of the advisory On appeal, Osorio-Cortez s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that, in her view, there are no meritorious issues for appeal. se Osorio-Cortez was informed of his right to file a pro supplemental brief but has not done so. Finding no reversible error, we affirm. * Our careful review of the record convinces us that the district court fully complied with the mandates of Fed. R. Crim. P. 11 in accepting Osorio-Cortez s guilty plea and ensured that Osorio-Cortez entered his plea knowingly and voluntarily and that the plea was supported by an independent factual basis. * Osorio-Cortez filed a pro se notice of appeal outside of the appeal period, and we remanded to the district court to determine whether Osorio-Cortez had demonstrated excusable neglect or good cause warranting an extension of the appeal period. See United States v. Osorio-Cortez, 308 F. App x 664 (4th Cir. Jan. 21, 2009) (No. 08-4527). The district court found Osorio-Cortez demonstrated excusable neglect and therefore deemed the notice of appeal timely filed. Accordingly, we review the appeal on the merits. 2 See United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). We review a sentence for reasonableness under an abuse of discretion standard. (2007). the This review requires appellate consideration of both procedural Id. Gall v. United States, 552 U.S. 38, 51 In and substantive determining reasonableness whether a sentence of a is sentence. procedurally reasonable, this court must first assess whether the district court properly range. calculated Id. at 49-50. the defendant s advisory guidelines This court then must consider whether the district court considered the factors in 18 U.S.C. § 3553(a) (2006), analyzed the arguments presented by the parties, and sufficiently explained the selected sentence. of whether the district within-Guidelines court sentence, it imposes must an place Regardless Id. above, on the below, or record an individualized assessment based on the particular facts of the case before it. United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). Finally, we review the substantive reasonableness of the sentence. Cir. 2007). United States v. Pauley, 511 F.3d 468, 473 (4th We presume that a sentence imposed properly calculated guidelines range is reasonable. within the Rita v. United States, 551 U.S. 338, 346-56 (2007); United States v. Smith, 566 F.3d 410, 414 (4th 3 Cir. 2009). Applying the presumption guidelines appeal, of reasonableness sentence, we find which that the to Osorio-Cortez s Osorio-Cortez fails district court did to not withinrebut abuse on its discretion in imposing the chosen sentence. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. This We court writing, of therefore requires the affirm that right to the counsel petition United States for further review. that a petition be filed, but district inform the court s judgment. Osorio-Cortez, Supreme Court of in the If Osorio-Cortez 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 Osorio-Cortez. dispense with oral argument because the facts and We 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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