US v. Francisco Lopez, No. 10-4073 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4073 UNITED STATES OF AMERICA, Plaintiff Appellee, v. FRANCISCO LOPEZ, a/k/a Francisco Gonzalez, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Anderson. G. Ross Anderson, Jr., Senior District Judge. (8:08-cr-00628-GRA-13) Submitted: December 20, 2010 Decided: January 21, 2011 Before DUNCAN and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Joshua Snow Kendrick, JOSHUA SNOW KENDRICK, PC, Columbia, South Carolina, for Appellant. Alan Lance Crick, Assistant United States Attorney, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Francisco Lopez appeals the district court s judgment imposing a sentence of 51 supervised release distribute methamphetamine (2006). after months in prison he pled guilty in violation of and years of conspiracy to to 21 5 U.S.C. § 846 Lopez s attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting, in his opinion, there are no meritorious grounds for appeal, but raising the issues of whether the district court complied with Fed. R. Crim. P. 11 when accepting sentence is reasonable. Lopez s guilty plea and whether his Lopez was notified of his right to file a pro se supplemental brief but has not done so. We affirm. Appellate counsel first questions whether the district court complied with Rule 11 when accepting Lopez s guilty plea, but he concludes the record reveals no error and the district complied with the rule. Because Lopez did not move in the district court to withdraw his guilty plea or otherwise raise Rule 11 error, we review the Rule 11 colloquy for plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Lopez s burden affecting exercise his our to show (1) substantial discretion to error; rights; notice 2 (2) and the that (4) error. Thus, it is is plain; that See we (3) should Martinez, 277 F.3d at 529. We have reviewed the record and conclude that Lopez has shown no plain error affecting substantial rights. Appellate counsel next questions whether Lopez s sentence is reasonable, but he concludes there is no procedural error and the sentence is substantively reasonable. sentence under a deferential We review a abuse-of-discretion Gall v. United States, 552 U.S. 38, 51 (2007). standard. The first step in this review requires us to ensure that the district court committed no significant procedural error, such as improperly calculating 18 U.S.C. the guideline § 3553(a) (2006) explain the sentence. 328 (4th Cir. range, factors, failing or to failing consider to the adequately United States v. Carter, 564 F.3d 325, 2009). We then consider the substantive reasonableness of the sentence imposed, taking into account the totality of the circumstances and giving due deference to the district court s decision. We have reviewed Gall, 552 U.S. at 51. the record and conclude that the district court did not err or abuse its discretion in sentencing Lopez, and his sentence is both procedurally and substantively reasonable. In accordance with the parties stipulation that Lopez was responsible for at least 1.5 kilograms but less than 5 kilograms of methamphetamine, the probation officer determined his base offense level was 34 under U.S. Sentencing Guidelines Manual § 2D1.1 (2008). Since he met the requirements of the 3 safety valve provisions, see 18 U.S.C. § 3553(f) (2006); USSG § 5C1.2, his offense level was reduced two levels under USSG § 2D1.1(b)(11) and the district court was permitted to sentence him below the mandatory minimum. With a three-level reduction for acceptance of responsibility and criminal history category I, his guideline range was 87 to 108 months. The Government moved for a sentence reduction under 18 U.S.C. § 3553(e) (2006); USSG § 5K1.1, and recommended that Lopez s offense level be reduced from 29 to 24, resulting in a recommended sentencing range of 51 to 63 months. and requested that recommendation. the After Lopez agreed with the calculations court go hearing along with argument the from Government s counsel and allocution from Lopez, the district court granted the request and sentenced Lopez at the bottom of the recommended range. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm the district court s judgment. This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, believes but counsel 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. 4 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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