US v. Hector Gutierrez, No. 13-4424 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4424 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HECTOR ALVAREZ GUTIERREZ, a/k/a Cochiloco, 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. (1:12-cr-00317-NCT-3) Submitted: June 18, 2014 Decided: June 27, 2014 Before MOTZ, DUNCAN, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro, 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 Unpublished opinions are not binding precedent in this circuit.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: Hector Alvarez Gutierrez pled guilty, pursuant to a written plea agreement, to conspiracy to distribute more than 100 kilograms (2012). of marijuana, in violation of 21 U.S.C. § 846 The district court sentenced Gutierrez to sixty-six months imprisonment. On appeal, Gutierrez s counsel has submitted a brief pursuant to Anders v. California, 386 U.S. 738 (1967), certifying that there are no meritorious grounds for appeal. Gutierrez filed a pro se supplemental brief alleging numerous claims of ineffective assistance of counsel. We affirm. Because Gutierrez did not move in the district court to withdraw his guilty plea, we review the Fed. R. Crim. P. 11 hearing for plain error. United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002); see Henderson v. United States, 133 S. Ct. 1121, 1126-27 (2013) (discussing standard of review). Although the district court neglected to inform Gutierrez of its power to order asset forfeiture, we conclude that the court s minor omission did not affect Gutierrez s substantial rights. See United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009). plea Moreover, the district court ensured that Gutierrez s was knowing supported the plea. and voluntary and that a factual basis Accordingly, we conclude that the district court substantially complied with Rule 11. 2 We review a sentence for reasonableness, applying an abuse-of-discretion standard. 38, 51 (2007). significant In so procedural Gall v. United States, 552 U.S. doing, we error. examine Id. If the sentence there is none, for we consider the substantive reasonableness of the sentence . . . , tak[ing] into account the totality of the circumstances. After a thorough conclude and that that his review Gutierrez s of the sentence within-Guidelines 445 F.3d 375, is proceedings, procedurally sentence presumption of reasonableness. Pineda, sentencing is Id. we reasonable entitled to the See United States v. Montes- 379 (4th Cir. 2006) (explaining presumption of reasonableness). Lastly, turning to Gutierrez s claims of ineffective assistance of counsel, such claims are generally not cognizable on direct appeal. United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008); see United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Instead, to allow for adequate development of the record, a defendant must ordinarily bring his claims in a 28 U.S.C. § 2255 (2012) motion. we may entertain such claims King, 119 F.3d at 295. on direct appeal However, only if it conclusively appears from the record that defense counsel did not provide effective representation. United Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Strickland v. Washington, 466 U.S. 3 668, 687 States v. See generally (1984) (setting forth standard). Because none of Gutierrez s alleged ineffective assistance of counsel claims conclusively appears on the record, we decline to address them in this appeal. 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 counsel s pending motion to withdraw. judgment and deny This court requires that counsel inform Gutierrez, in writing, of the right to petition the Supreme Court of the United States for further review. Gutierrez requests that a petition be filed, but If counsel believes that such a petition would be frivolous, then counsel may move in representation. this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Gutierrez. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 4
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