US v. Jose Galindo, No. 12-4100 (4th Cir. 2013)

Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4100 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JOSE ANGEL GUERRERO GALINDO, Defendant -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-00124-NCT-2) Submitted: March 20, 2013 Decided: April 3, 2013 Before AGEE, FLOYD, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN, 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 Unpublished opinions are not binding precedent in this circuit.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: Jose written Guerrero plea Galindo agreement hydrochloride in possession firearms of to conspiracy violation in pled of 21 guilty to distribute U.S.C. furtherance pursuant § 846 of a to cocaine (2006) drug a and trafficking crime in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), 2 (2006). On appeal, counsel California, 386 has U.S. filed 738 a brief (1967), pursuant stating to that Anders there are v. no meritorious issues for appeal but questioning the reasonableness of Galindo s brief, sentence. alleging violated Galindo generally because he was that not filed his a pro due provided se supplemental process with rights were Spanish language materials and that his trial counsel was ineffective. Finding no error, we affirm. We review deferential States, sentences for abuse-of-discretion 552 U.S. 38, 41, reasonableness standard. 51 (2007). Gall This under v. review a United entails appellate consideration of both the procedural and substantive reasonableness of the sentence. procedural reasonableness, court properly range, gave appropriate calculated the consider defendant s an opportunity considered the 2 In determining whether the parties sentence, we Id. at 51. 18 the advisory to Guidelines argue U.S.C. district for an § 3553(a) factors, selected a sentence based on clearly erroneous facts, and sufficiently explained the selected sentence. Galindo s Galindo s sentence appellate is counsel procedurally first Id. at 49-51. questions reasonable. whether Specifically, counsel questions whether the district court erred by applying a leadership enhancement Guidelines operating USSG a attributing drug fifty pursuant § 3B1.1(a) house to (2011), pursuant kilograms United of to an Sentencing enhancement for § 2D1.1(b)(12), USSG cocaine States by to Galindo, and by failing to adequately consider and explain the application to Galindo of § 3553(a). the statutory Upon careful factors review of set forth the in record, 18 we U.S.C. find no procedural error. If a sentence is free of significant procedural error, we then review it for substantive reasonableness, tak[ing] into account the totality of the circumstances. 51. Gall, 552 U.S. at When rendering a sentence, the district court must 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. If the sentence is within the Gall, properly calculated Guidelines range, this court applies a presumption on 3 appeal that the sentence is substantively reasonable. United 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 against the § 3553(a) factors. United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks omitted). the presumption within of Guidelines reasonableness sentence, we that attaches conclude In light of Galindo s the that to sentence selected was not substantively infirm. In his pro se supplemental brief Galindo contends that his plea was not knowing and voluntary because he was not provided with Spanish-language documentation or Spanish-language legal materials. 466 (1969) See McCarthy v. United States, 394 U.S. 459, (holding that, if a plea is not voluntary and knowing, it has been obtained in violation of due process and is therefore void ). Because Galindo did not bring these concerns to the attention of the district court, we review for plain error. See United States v. Olano, 507 U.S. 725, 732 (1993) (holding that unpreserved plain error standard). error is to be reviewed under the We conclude that the record demonstrates that the district court did not commit plain error by accepting Galindo s plea. Galindo stated that he understood the proceedings, participated meaningfully in the Rule 11 hearing, and ultimately admitted his guilt. 4 See United States v. Rubio, 677 F.3d 1257, 1260-62 (D.C. Cir. 2012) (holding that the defendant could not establish that her plea was involuntary on the basis of a Spanish language barrier when the record indicated that she had understood proceedings). * Finally, effective Galindo assistance of contends that was Claims counsel. he of denied the ineffective assistance of counsel are generally not cognizable on direct appeal unless the record clearly demonstrates ineffectiveness. United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006); see also United States v. King, 119 F.3d 290, 295 (4th Cir. 1997) ( [I]t is well settled that a claim of ineffective assistance should be raised in a 28 U.S.C. § 2255 motion in the district court rather than on direct appeal, unless the record conclusively shows ineffective assistance. ) (internal quotation marks omitted). does not Upon review of the record, we conclude that it conclusively show that Galindo s counsel was ineffective, and accordingly decline to consider this issue on direct appeal. * Galindo also raises numerous questions inviting this court to go beyond the scope of an Anders review and determine the legality of the warrant against him, the evidentiary chain of custody, and whether drug residue was present on his clothing, among others. We conclude that these contentions are moot in light of Galindo s guilty plea, and that no plain error connected with any of Galindo s contentions appears on the face of the record. 5 In accordance with Anders, we have reviewed the 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 Galindo, in writing, of the right to petition the Supreme Court of the United States for further review. If Galindo requests that a petition be filed, but counsel believes that such a petition 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 Galindo. We dispense with oral argument because the facts and legal before contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 6