US v. Daniel Cortez-Meza, No. 10-4346 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4346 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL CORTEZ-MEZA, a/k/a Daniel Herrera, Defendant - Appellant. No. 10-4347 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALEJANDRO ZAVALA-LOPEZ, a/k/a Alejandro Zavala, Defendant - Appellant. No. 10-4573 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CARLOS ALEX HERNANDEZ-RODRIGUEZ, a/k/a Alex, a/k/a Sergio Mendoza Gallardo, Defendant - Appellant. Appeals from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, District Judge. (3:09-cr-00390-CMC-7; 3:09-cr-00390-CMC-8; 3:09-cr-00390-CMC-2) Submitted: November 28, 2011 Decided: December 13, 2011 Before WILKINSON, MOTZ, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Ola A. Johnson, Lexington, South Carolina; Debra Y. Chapman, DEBRA Y. CHAPMAN, PA, Columbia, South Carolina; Jonathan M. Milling, MILLING LAW FIRM, LLC, Columbia, South Carolina, for Appellants. Robert Claude Jendron, Jr., Mark C. Moore, Assistant United States Attorneys, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Daniel Cortez-Meza and Alejandro Zavala-Lopez pled guilty, pursuant to written plea agreements, to conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846 distribute a (2006), quantity and of possession cocaine, § 841(a)(1), (b)(1)(C) (2006). in with the violation intent of 21 to U.S.C. Carlos Hernandez-Rodriguez pled guilty, pursuant to a written plea agreement, to conspiracy to distribute 50 grams or more of methamphetamine, 5 kilograms or more of cocaine, and 500 grams or more of a mixture containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 846, and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (2006). Both Cortez-Meza and Zavala- Lopez were sentenced to the 120-month statutory minimum sentence for their crimes. Hernandez-Rodriguez was sentenced to 240 months imprisonment, a downward variance from the Guidelines range. Appellants attorneys submitted a consolidated brief in accordance with Anders v. California, 386 U.S. 738 (1967), questioning the hearings and adequacy whether of Appellants Appellants Fed. sentences R. are Crim. P. 11 reasonable. Although each Appellant received notice of his right to file a 3 pro se supplemental brief, only Zavala-Lopez did so. 1 Because we find no meritorious grounds for appeal, we affirm the district court s judgments. Appellants first question whether the district court adequately advised them during their Rule 11 hearings. Prior to accepting a guilty plea, a district court must conduct a plea colloquy in which it informs the defendant of, and determines that the defendant comprehends, the nature of the charge to which he is pleading guilty, any mandatory minimum penalty, the maximum possible relinquishing by penalty pleading he faces, guilty. and Fed. the R. rights Crim. P. he is 11(b); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). Additionally, the district court must determine that there is a factual basis for the plea. Fed. R. Crim. P. 11(b)(3). Finally, the district court must ensure that the defendant s plea was voluntary and did not result from force, threats, or promises not contained in the plea agreement. 11(b)(2). 11, this Fed. R. Crim. P. In reviewing the adequacy of compliance with Rule Court should accord deference 1 to the trial court s With regard to Zavala-Lopez s claim of ineffective assistance of counsel, we decline to address this claim because it is not cognizable on direct appeal where, as here, there is no conclusive evidence supporting his claim apparent on the face of the record. United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). 4 decision as to how best to conduct the mandated colloquy with the defendant. DeFusco, 949 F.2d at 116. Because Appellants did not move in the district court to withdraw hearings their is guilty reviewed pleas, for plain any error error. in the United Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Rule 11 States v. To establish plain error, Appellants must show: (1) an error was made; (2) the error is plain; and (3) the error affects substantial rights. United States 2009). v. However, Massenburg, [t]he 564 decision F.3d 337, 342-43 to correct the (4th Cir. error lies within our discretion, and we exercise that discretion only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. Id. at 343 (internal quotation marks omitted). We have thoroughly reviewed the records in this case and conclude that the district court fully complied with Rule 11 in accepting Although the guilty pleas district from court Cortez-Meza made one and minor Zavala-Lopez. omission in Hernandez-Rodriguez s plea hearing by failing to inform him of the penalties for perjury if he lied under oath, that omission did not affect Hernandez-Rodriguez s substantial rights. See id. at 344 ( [T]he mere existence of an error cannot satisfy the requirement that [defendant] show that his substantial rights were affected. ). Moreover, each Appellant s plea was knowing 5 and voluntary, factual basis. and each plea was adequately supported by a See DeFusco, 949 F.2d at 116, 119-20. Appellants also question the reasonableness of their sentences. applying This court reviews a sentence for reasonableness an abuse-of-discretion States, 552 U.S. 38, 51 (2007). standard. Gall v. United In determining the procedural reasonableness of a sentence, we consider whether the district court properly Guidelines analyzed calculated the Guidelines range, as advisory, considered the § 3553(a) any arguments presented by the sufficiently explained the selected sentence. review treated the substantive reasonableness factors, parties, Id. of and Finally, we the examin[ing] the totality of the circumstances. the sentence, United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). Because Appellants did not request a sentence different than the sentences ultimately imposed, the sentences are reviewed for plain error. United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010); see Massenburg, 564 F.3d at 342-43 (discussing plain error standard). followed Appellants, the necessary properly procedural calculating Here, the district court steps the in sentencing Guidelines range, considering the § 3553(a) factors, and sentencing each Appellant to the very sentence he requested: in the cases of Cortez-Meza and Zavala-Lopez, to the mandatory minimum sentences, and in the 6 case of Hernandez-Rodriguez, a downward variant sentence well below his advisory Guidelines range. 2 Hence, we conclude that the sentences imposed by the district court were reasonable. In accordance with Anders, we have reviewed the record in these cases and have found no meritorious issues for appeal. We therefore affirm the district court s judgments. This court requires that counsel inform Appellants in writing of the right to petition the Supreme Court of the United States for further review. If Appellants request that such petitions be filed, but counsel believes that the petitions would be frivolous, then counsel may move representation. in this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on the respective Appellant. 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 2 In his pro se brief, Zavala-Lopez contends the district court failed to make a proper drug quantity finding and failed to adequately explain the basis for the sentence it imposed. We have carefully considered Zavala-Lopez s arguments and conclude they are without merit. 7

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