US v. Fabian Beltran Lopez, No. 13-4234 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4234 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FABIAN ISRAEL BELTRAN LOPEZ, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Mark S. Davis, District Judge. (2:12-cr-00015-MSD-LRL-2) Submitted: November 26, 2013 Decided: December 5, 2013 Before DUNCAN, DAVIS, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Richard J. Colgan, Assistant Federal Public Defender, Caroline S. Platt, Appellate Attorney, Norfolk, Virginia, for Appellant. Laura Marie Everhart, Assistant United States Attorney, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Fabian Israel court s judgment Beltran Lopez alleging his operation. Beltran sentencing pled him to to guilty extensive Lopez a appeals 168 the months imprisonment. seventeen-count involvement in a district indictment drug trafficking Beltran Lopez s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), certifying that there are whether no meritorious Beltran Lopez s grounds sentence for is appeal but questioning substantively reasonable. Beltran Lopez, though given the opportunity to do so, has not filed a pro se supplemental brief. We affirm. We review a sentence for reasonableness, applying an abuse of discretion standard. 38, 51 (2007). procedural error, reasonableness of If as the the Gall v. United States, 552 U.S. sentence here, we sentence, totality of the circumstances. is free consider tak[ing] Id. of significant the substantive into account the If the sentence is within the Guidelines range, we presume on appeal that the sentence is reasonable. United States v. Day, 700 F.3d 713, 730 (4th Cir. 2012), cert. denied, 133 S. Ct. 2038 (2013); see Rita v. United States, 551 U.S. 338, 346 56 (2007) (permitting appellate presumption of reasonableness for within-Guidelines sentence). Such a presumption is rebutted only if the defendant shows that the sentence is unreasonable when measured against the ยง 3553(a) 2 factors. United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks omitted). Beltran sentence is Lopez contends substantively that his unreasonable within-Guidelines because the district court did not accept his argument that the Guidelines were not empirically based and credited the Government s interpretation of Beltran Lopez s role in the offense. We will not disregard the presumption of reasonableness that attaches to a withinGuidelines sentence merely because the Guideline in question is not empirically based. See United States v. Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir. 2009). Additionally, we conclude that there was sufficient evidence for the district court to refuse Lopez s to vary role in below the the Guidelines offense. range Lastly, we based on conclude Beltran that the district court gave sufficient reasons for its within-Guidelines sentence, relying on drug quantity and harm to the community. In accordance with Anders, we have reviewed the record in this case and have found no meritorious grounds for appeal. We therefore affirm the district court s judgment. This court requires that counsel inform Beltran Lopez, in writing, of the right to petition the Supreme Court of the United States for further review. filed, but If Beltran Lopez requests that a petition be counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to 3 withdraw from representation. Counsel s motion must state that a copy thereof was served on Beltran Lopez. 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 4