US v. Toribio Carbajal-Aguirre, No. 13-4482 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4482 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TORIBIO CARBAJAL-AGUIRRE, a/k/a Silverio Hernandez-Maya, a/k/a Toribio Carbajal, a/k/a Silverio Hernandez Maya, a/k/a Pedro Aguire Benitez, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:13-cr-00035-CCE-1) Submitted: November 19, 2013 Before WYNN and Circuit Judge. FLOYD, Circuit Decided: November 21, 2013 Judges, and HAMILTON, Senior Affirmed by unpublished per curiam opinion. Stacey D. Rubain, QUANDER & RUBAIN, P.A., Winston-Salem, North Carolina, for Appellant. Kyle David Pousson, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Toribio Carbajal-Aguirre pleaded guilty pursuant to a written plea agreement to illegally reentering the United States after having been removed based upon a felony conviction, in violation of 8 U.S.C. § 1326(a), (b)(2) (2012), and received a sentence of seventy-five months imprisonment. On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), certifying that there are no meritorious issues for appeal, but questioning the district court s compliance with Federal Rule of Criminal Procedure 11 and the reasonableness of the sentence. a pro se Carbajal-Aguirre was advised of his right to file supplemental brief, but Government declined to file a brief. has not done so. The We affirm. Because Carbajal-Aguirre 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, Carbajal- Aguirre 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). Our review of the record establishes that the district court substantially complied with Rule 11 s requirements, ensuring was knowing and voluntary. 2 that Carbajal-Aguirre s plea We review reasonableness, standard. review Carbajal-Aguirre s under a sentence deferential abuse-of-discretion Gall v. United States, 552 U.S. 38, 41 (2007). requires consideration of both the substantive reasonableness of the sentence. States v. for Lynn, 592 F.3d 572, 575 (4th This procedural and Id. at 51; United Cir. 2010). After determining whether the district court correctly calculated the advisory Guidelines range, we must decide whether the court considered the 18 U.S.C. § 3553(a) (2012) 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 Gall, 552 U.S. at 51. totality of the If the sentence is within the appropriate Guidelines range, we presume that the sentence is reasonable. 261 (4th Cir. 2008). United States v. Abu Ali, 528 F.3d 210, Such a presumption is rebutted only if the defendant demonstrates that the sentence is unreasonable when measured against Montes-Pineda, the 445 § 3553(a) F.3d 375, factors. 379 quotation marks omitted). 3 (4th United Cir. 2006) States v. (internal We conclude that the district court committed neither procedural nor substantive error in sentencing. The court correctly calculated and considered as advisory the applicable Guidelines range. After hearing argument from defense counsel for a downward variance and allocution from Carbajal-Aguirre, the district court explained that the within-Guidelines sentence was warranted convictions. in light of Carbajal-Aguirre s prior felony Counsel does not offer any grounds to rebut the presumption on appeal that Carbajal-Aguirre s within-Guidelines sentence none. is substantively reasonable, and our review reveals Accordingly, we conclude that the district court did not abuse its discretion in sentencing Carbajal-Aguirre. 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 Carbajal-Aguirre s conviction and This court requires that counsel inform Carbajal- Aguirre, in writing, of the right to petition the Supreme Court of the United States for further review. If Carbajal-Aguirre 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 CarbajalAguirre. AFFIRMED 4