US v. Hildeberto Gonzalez-Chavez, No. 12-4822 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4822 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HILDEBERTO GONZALEZ-CHAVEZ, a/k/a Beetle, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:11-cr-00022-RLV-DSC-2) Submitted: May 8, 2013 Decided: May 10, 2013 Before SHEDD, DUNCAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Samuel B. Winthrop, WINTHROP & WINTHROP, Statesville, North Carolina, for Appellant. Steven R. Kaufman, Assistant United States Attorney, Charlotte, North Carolina; Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Hildeberto Gonzalez-Chavez pleaded guilty, pursuant to a written plea agreement, distribute and possess to conspiracy with to intent manufacture, to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006). The district court sentenced Gonzalez-Chavez to 168 months imprisonment. On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), alleging that the reasons district for variance denying and Counsel court also erred by failing Gonzalez-Chavez s questioning questions the to request reasonableness whether the articulate district for of a the court its downward sentence. erred in applying a two-level sentencing enhancement for possession of a firearm. joins In Gonzalez-Chavez s pro se supplemental brief, he counsel in raising these arguments. declined to file a responsive brief. The Government Following a careful review of the record, we affirm. Because Gonzalez-Chavez did not move in the district court to withdraw his guilty plea, we review the Rule 11 hearing for plain error. (4th Cir. 2002). United States v. Martinez, 277 F.3d 517, 525 To prevail under this standard, Gonzalez- Chavez must establish that an error occurred, was plain, and affected his substantial rights. United States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009). 2 Our review of the record establishes that the district court substantially complied with Rule 11 s requirements, ensuring that Gonzalez-Chavez s plea was knowing and voluntary. We deferential States, review Gonzalez-Chavez s abuse-of-discretion 552 U.S. consideration of 38, 51 both correctly This v. review and a United requires substantive Id.; United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). court under Gall procedural reasonableness of the sentence. district standard. (2007). the sentence After determining whether the calculated the advisory Guidelines range, we must decide whether the court considered the § 3553(a) factors, analyzed the arguments presented by the parties, and sufficiently explained the selected sentence. Lynn, 592 F.3d at 575-76; United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). Once we have determined that the sentence is free of procedural error, we consider the substantive reasonableness of the sentence, tak[ing] circumstances. into account the totality of the Gall, 552 U.S. at 51; Lynn, 592 F.3d at 575. If the sentence is within the appropriate Guidelines range, we apply a reasonable. presumption on appeal that the sentence is United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). Such a presumption is rebutted only if the defendant demonstrates that the sentence is unreasonable when 3 measured against Montes-Pineda, the 445 § 3553(a) F.3d 375, United factors. 379 (4th Cir. States 2006) v. (internal quotation marks omitted). Gonzalez-Chavez asserts that the district court erred in applying the two-level enhancement, pursuant to U.S. Sentencing Guidelines Manual ( USSG ) § 2D1.1(b)(1) (2011), for the firearm Chavez found in Gonzalez-Chavez s stipulated in his plea enhancement was applicable. Government summarized stipulation, and Gonzalez-Chavez presentence the agreement report, not nor that the Gonzaleztwo-level At the guilty plea hearing, the plea agreement, Gonzalez-Chavez did residence. object did he confirmed to at including the any its enhancement time dispute this accuracy. in the that he possessed the firearm in connection with the drug conspiracy. Accordingly, we conclude that the district court did not err in applying the enhancement to which Gonzalez-Chavez stipulated. Gonzalez-Chavez also argues that the erred in failing to grant a downward variance. district court The court fully responded to defense counsel s argument for a below-Guidelines sentence, provided a detailed individualized clearly explained the imposed sentence. court correctly applicable calculated Guidelines range and and 4 assessment, and Because the district considered as adequately advisory the explained its sentencing determination, we conclude that Gonzalez-Chavez s sentence was procedurally reasonable. Finally, Gonzalez-Chavez reasonableness of the sentence. questions the substantive The district court thoroughly evaluated these arguments in denying Gonzalez-Chavez s request for a downward variance. Furthermore, our review of the record leads us to conclude that Gonzalez-Chavez has not overcome the presumption of reasonableness Guidelines sentence. court did not applicable to his within- Accordingly, we conclude that the district abuse its discretion in sentencing Gonzalez- Chavez. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. sentence. We therefore affirm Gonzalez-Chavez s conviction and This court requires that counsel inform Gonzalez- Chavez, in writing, of the right to petition the Supreme Court of the United States for further review. If Gonzalez-Chavez 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 GonzalezChavez. We dispense with oral argument because the facts and legal contentions are adequately 5 presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 6
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