US v. Misael Avellaneda-Campos, No. 12-4635 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4635 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MISAEL AVELLANEDA-CAMPOS, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., Chief District Judge. (1:11-cr-00298-WO-1) Submitted: April 25, 2013 Before AGEE and Circuit Judge. WYNN, Circuit Decided: April 29, 2013 Judges, and HAMILTON, Senior Affirmed by unpublished per curiam opinion. George E. Crump, III, LAW OFFICE OF GEORGE E. CRUMP, III, Rockingham, North Carolina, for Appellant. Angela Hewlett Miller, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Misael without a Avellaneda-Campos plea agreement, to ( Campos ) illegal pled reentry guilty, following a conviction for an aggravated felony in violation of 8 U.S.C. § 1326(a), (b)(2) (2006), months imprisonment. brief in and was He appeals. accordance with Anders sentenced to seventy-two Campos attorney has filed a v. California, 386 U.S. 738 (1967), in which he asserts that there are no meritorious issues for appeal but challenges Campos sentence. Although advised of his right to file a supplemental pro se brief, Campos has not done so. Finding no error, we affirm. Counsel first questions whether the district court plainly erred by failing to compel the Government to move for a reduction Manual in offense level § 3E1.1(b) responsibility. under U.S. (2011) Sentencing for Guidelines acceptance of See United States v. Olano, 507 U.S. 725, 732 (1993) (applying plain error standard for unpreserved error). At sentencing, acceptance of the court applied responsibility a under two-level USSG reduction § 3E1.1(a). for An additional one-level acceptance of responsibility reduction was possible only if the Government moved for the reduction. USSG § 3E1.1(b). See The district court did not plainly err by refusing to compel the Government to move for this additional reduction because Campos did not plead guilty until the day of 2 trial. USSG See § 3E1.1 cmt. n.6. ( [t]o qualify under subsection (b), the defendant must have notified authorities of his intention to enter a plea of guilty at a sufficiently early point in the process so that the government may avoid preparing for trial and the court may schedule its calendar efficiently. ). Counsel also challenges the substantive reasonableness of Campos sentence for standard. review within-Guidelines reasonableness, applying We an review abuse of Campos discretion Gall v. United States, 552 U.S. 38, 51 (2007). This requires substantive whether sentence. consideration reasonableness the district of court of the both the procedural Id. sentence. properly calculated We the and assess advisory Guidelines range, considered the factors set forth in 18 U.S.C. § 3553(a) (2006), analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. Id. at 49 50; see United States v. Lynn, 592 F.3d 572, 575 76 (4th Cir. 2010). substantive totality of If there is no procedural error, we review the reasonableness the of the circumstances to sentence, see examin[ing] whether the the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a). United States v. Mendoza Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). If the sentence is within the 3 Guidelines range, we apply a Rita v. United States, 551 U.S. presumption of reasonableness. 338, 346 56 (2007) (upholding presumption of reasonableness for within-Guidelines sentence). We have thoroughly reviewed the record and conclude that the sentence reasonable. is presumption Moreover, of both procedurally Campos reasonableness has we and failed accord substantively to his overcome the within-Guidelines sentence. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Campos conviction and sentence. This court requires that counsel inform Campos, in writing, of the right to petition the Supreme review. If Campos Court of requests the that United a States petition for be further 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 Campos. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4
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