US v. Gabriel Chavez-Vargas, No. 12-4091 (4th Cir. 2012)
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CORRECTED OPINION UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4091 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GABRIEL CHAVEZ-VARGAS, Defendant -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. (1:11-cr-00177-NCT-1) Submitted: September 21, 2012 Corrected Opinion Filed: Decided: November 5, 2012 November 5, 2012 Before KING, DIAZ, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Stacey D. Rubain, QUANDER & RUBAIN, P.A., Winston-Salem, North Carolina, for Appellant. Randall Stuart Galyon, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gabriel Chavez-Vargas ( Vargas ) pled guilty, pursuant to a written plea agreement, to one count of conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(A) (West 2006 & Supp. 2012) and 21 U.S.C. § 846 (2006). The district court determined that Vargas was eligible for relief under the safety valve, 18 U.S.C. § 3553(f) (2006), calculated his Guidelines range under the U.S. Sentencing Guidelines Manual (2011) at seventy to eighty-seven months imprisonment, imprisonment. and sentenced Vargas to eighty months On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal, but questioning whether the district court abused its discretion in imposing sentence. Vargas has filed a pro se supplemental brief raising several issues. We affirm. This court reviews Vargas sentence for reasonableness under a deferential abuse-of-discretion standard. United States, 552 U.S. 38, 41, 51 (2007). Gall v. In conducting this review, this court considers whether the district court properly calculated the defendant s advisory Guidelines range, gave the parties an opportunity to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a) factors, selected a sentence based on clearly erroneous facts, 2 or failed to explain sufficiently rendering the a selected sentence, sentence. the Id. district at 49-51. court must When make an individualized assessment based on the facts presented, United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and emphasis omitted), and must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing. 552 U.S. at 50. When imposing a sentence Gall, within the Guidelines, however, the [district court s] explanation need not be elaborate themselves or are lengthy in many because ways [G]uidelines tailored to the sentences individual and reflect approximately two decades of close attention to federal sentencing policy. United States v. Hernandez, 603 F.3d 267, 271 (4th Cir. 2010) (internal quotation marks omitted). If the sentence is free of significant procedural error, we review it for substantive reasonableness, tak[ing] into account the totality of the circumstances. at 51. If Guidelines sentence the range, is sentence we is apply substantively a within the presumption reasonable. Gall, 552 U.S. properly on calculated appeal United that the States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). Such a presumption is rebutted only if the defendant shows that the sentence is unreasonable when measured 3 against the § 3553(a) factors. United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks omitted). In this case, the district court correctly calculated and considered the advisory Guidelines range, from counsel and allocution from Vargas. that the within-Guidelines imprisonment circumstances was of characteristics. Vargas in of light offense argument The court explained sentence warranted heard eighty of and the months and history his nature and Neither counsel nor Vargas offers any grounds to rebut the presumption on appeal that the within-Guidelines sentence is substantively reasonable. that the district court did not Accordingly, we conclude abuse its discretion in sentencing Vargas. In accordance with Anders, we have reviewed the issues raised in Vargas pro se supplemental brief and the entire record in this case and have found no meritorious issues for appeal. * in the colloquy Because Vargas did not move to withdraw his guilty plea district for court, plain we error review only. * the United Fed. R. States Crim. v. P. 11 Martinez, To the extent that Vargas asserts claims of ineffective assistance of counsel, we find them inappropriate for resolution on direct appeal. Because ineffectiveness of counsel is not conclusively established by the record, Vargas must assert such claims, if at all, in an appropriate motion for post-conviction relief pursuant to 28 U.S.C.A. § 2255 (West Supp. 2012). United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). 4 277 F.3d 517, 524-26 (4th Cir. 2002). To demonstrate plain error, a defendant must show: (1) there was error; (2) the error was plain; and (3) the error affected his substantial rights. United States v. Olano, 507 U.S. 725, 732 (1993). In the guilty plea context, a defendant meets his burden to establish that a plain error affected his substantial rights by showing a reasonable probability that he would not have pled guilty but for the Rule 11 omission. United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009). The record contains no suggestion that, but for any error by the district court at the Rule 11 colloquy, Vargas would not have entered his guilty plea. Accordingly, we conclude that, because any error by the district court in conducting the colloquy did not affect Vargas substantial rights, the district court did not plainly err in accepting his guilty plea. We therefore affirm the district court s judgment. This court requires that counsel inform Vargas, in writing, of the right to petition the Supreme Court of the United States for further review. If Vargas 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 Vargas. 5 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 6
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