US v. Hector Lopez-Gutierrez, No. 12-4188 (4th Cir. 2012)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4188 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HECTOR LOPEZ-GUTIERREZ, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:10-cr-00032-RLV-8) Submitted: December 13, 2012 Decided: December 21, 2012 Before DAVIS, KEENAN, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Dianne J. McVay, JONES MCVAY FIRM, PLLC, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Pursuant to a written plea agreement, Hector LopezGutierrez pled guilty to conspiracy to distribute and to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 846 Gutierrez to counsel has (2006). 210 months submitted California, 386 meritorious grounds district court Guidelines U.S. a court sentenced imprisonment. brief 738 for district in appeal when and whether stating but it with that questioning calculated the Lopez- Lopez-Gutierrez s accordance (1967), erred range reasonable. The Anders there are whether v. no the Lopez-Gutierrez s sentence is substantively Lopez-Gutierrez has filed a supplemental pro se brief that challenges the voluntariness of his guilty plea and the district court s calculation of his Guidelines range. We affirm. Although Lopez-Gutierrez challenges the voluntariness of his guilty colloquy plea, contradict his his sworn statements arguments on during appeal. the plea Absent extraordinary circumstances, the truth of sworn statements made during a [Fed. established. R. Crim. P.] 11 colloquy is conclusively United States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005). [W]hen a defendant says he lied at the Rule 11 colloquy, he bears a heavy burden in seeking to nullify the process. United States v. Bowman, 348 F.3d 408, 417 (4th Cir. 2 2003). We have reviewed the contentions on appeal and are satisfied that Lopez-Gutierrez has not met his burden of showing that he lied during the plea colloquy. We therefore conclude that Lopez-Gutierrez s plea was knowing and voluntary. Turning to Lopez-Gutierrez s challenge to his sentence, we review for reasonableness, applying an abuse of discretion standard. (2007). the Gall v. United States, 552 U.S. 38, 51 This review requires appellate consideration of both procedural and substantive reasonableness of a sentence. Id. Lopez-Gutierrez s counsel questions whether the district court erred in finding that the drugs attributable to Lopez-Gutierrez district were court s actual methamphetamine. calculation of the We quantity review of the drugs attributable to a defendant for sentencing purposes for clear error. United States v. Slade, 631 F.3d 185, 188 (4th Cir.) (internal quotation marks omitted), cert. denied, 131 S. Ct. 2943 (2011). We reverse only if we are left with the definite and firm conviction that a mistake has been committed. United States v. Jeffers, 570 F.3d 557, 570 (4th Cir. 2009) (internal quotation marks omitted). We have reviewed the contentions on appeal and are satisfied that the district court did not clearly err in attributing actual methamphetamine to Lopez-Gutierrez. 3 Second, counsel questions whether the district court erred when it enhanced Lopez-Gutierrez s base offense level by two levels for possession of a firearm. a defendant s offense level is A two-level increase in warranted [i]f weapon (including a firearm) was possessed. the burden to show that a dangerous U.S. Sentencing Guidelines Manual ( USSG ) § 2D1.1(b)(1) (2010). bears a The defendant connection between his possession of a firearm and his narcotics offense is clearly improbable. United States v. Harris, 128 F.3d 850, 852-53 (4th Cir. 1997) (internal quotation marks omitted). We conclude that Lopez-Gutierrez has not met his burden of establishing that a connection between his possession of a firearm and his offense was clearly improbable and that the district court s finding was not clearly erroneous. Third, counsel questions whether the district court erred when it found that Lopez-Gutierrez was not eligible for the safety valve reduction in USSG § 5C1.2(a). The defendant has the burden of showing that he meets all five criteria for application of the safety valve reduction. United States v. Henry, 673 F.3d 285, 292-93 (4th Cir.), cert. denied, 133 S. Ct. 182 (2012). Lopez-Gutierrez provided no evidence to establish that he did not actually possess a weapon or that he gave a qualifying statement. We therefore conclude that the district 4 court s refusal to apply the safety valve reduction was not clearly erroneous. Fourth, counsel questions whether the district court erred in determining that Lopez-Gutierrez was not a minor participant in the conspiracy and, therefore, not eligible for a two-level reduction in his offense level. The Guidelines permit a two-level mitigating role reduction if the defendant was a minor participant in any criminal activity. We have reviewed satisfied that the the contentions district raised court did USSG § 3B1.2(b). on not appeal clearly and err are in declining to label Lopez-Gutierrez as a minor participant in the conspiracy. Finally, reasonableness of counsel questions Lopez-Gutierrez s the sentence substantive because district court declined to vary below the Guidelines range. the As the district court sentenced Lopez-Gutierrez within the properly calculated Guidelines range, we apply a presumption on appeal that the sentence is reasonable. See United States v. Mendoza Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). Such a presumption is rebutted only by showing that the sentence is unreasonable when measured against the § 3553(a) factors. United States v. Montes-Pineda, 2006) 445 F.3d quotation marks omitted). 375, 379 (4th Cir. (internal Because Lopez-Gutierrez has not met his burden of showing that his sentence is unreasonable when 5 measured against the § 3553(a) factors, we conclude that the district court did not abuse its discretion in imposing the 210month 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 a petition be filed, inform petition United States for further review. that district but the court s judgment. Lopez-Gutierrez, Supreme Court of in the If Lopez-Gutierrez 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 Lopez-Gutierrez. 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

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