US v. Alejandro Sandoval, No. 13-4757 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4757 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALEJANDRO SANDOVAL, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (2:11-cr-02037-DCN-20) Submitted: May 30, 2014 Decided: June 10, 2014 Before WYNN and FLOYD, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Leslie T. Sarji, SARJI LAW FIRM, LLC, Charleston, South Carolina, for Appellant. Robert Nicholas Bianchi, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Alejandro Sandoval appeals his conviction and the 135month sentence imposed following his guilty plea to possession with intent to distribute violation of 21 Sandoval s counsel 500 U.S.C. has grams § filed or more 841(a)(1), a brief of cocaine, (b)(1)(B) pursuant to in (2012). Anders v. California, 386 U.S. 738 (1967), concluding that there are no meritorious issues for appeal but questioning whether the district court (1) erroneously withheld a one-level reduction for acceptance of responsibility, and (2) failed to adequately explain its sentence. Sandoval has filed a pro se supplemental brief arguing that the district court improperly calculated the drug weight ineffective. brief. attributable to him and that his counsel was The Government has declined to file a response Following a careful review of the record, we affirm. I. We applying an review abuse criminal of sentences discretion States, 552 U.S. 38, 51 (2007). ensure that the district court for standard. reasonableness, Gall v. United In so doing, we must first committed no significant procedural error, such as improperly calculating the advisory Sentencing Guidelines range, failing to consider the 18 U.S.C. § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence. 2 Id. If a sentence is procedurally reasonable, we then examine its substantive reasonableness, taking into account the totality of the circumstances. United States v. Mendoza Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). Guidelines range, we presume substantively reasonable. If the sentence is within the on appeal that the sentence is United States v. Strieper, 666 F.3d 288, 295 (4th Cir. 2012). A. First, counsel questions the district court s decision to withhold the additional one-level reduction for acceptance of responsibility under U.S. Sentencing Guidelines Manual ( USSG ) § 3E1.1(b). We review this decision for clear error. States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007). United To merit this reduction, the defendant must establish by a preponderance of the evidence that he has clearly recognized and affirmatively accepted personal responsibility for his criminal conduct. United States v. McKenzie-Gude, 671 F.3d 452, 463 (4th Cir. 2011) (internal quotation marks omitted). who falsely denies relevant conduct acts inconsistent with acceptance of responsibility. cmt. n.1. to in A defendant a manner USSG § 3E1.1, Because the sentencing court is in the best position evaluate a defendant s acceptance of responsibility, we afford great deference to the district court s determination. Dugger, 485 F.3d at 239. 3 Although Sandoval pleaded guilty, the district court determined that his accountable for testimony only one during kilogram sentencing of cocaine least falsely denying relevant conduct. that he amounted to was at Given our deference to the district court s determination, we cannot conclude that it clearly erred in denying the additional reduction. B. Counsel next questions whether the district court adequately explained its rationale for the chosen sentence. sentencing, the factors make facts and district presented. individualized an court must individualized Gall, assessment 552 need consider assessment U.S. not be at the statutory based 50. elaborate In on While or the the lengthy, . . . it must provide a rationale tailored to the particular case at review. 2009). hand and adequate to permit meaningful appellate United States v. Carter, 564 F.3d 325, 330 (4th Cir. The district court here explained its consideration of each sentencing factor in determining Sandoval s sentence. The court balanced the serious nature of the offense and Sandoval s continued disrespect for the law with his need for education and training and the nature of his prior criminal convictions. The court considered Sandoval s motion for a downward variance, and, while it denied the motion, it noted that the nature of his criminal history warranted a sentence at the low end of the 4 Guidelines. We thus conclude that Sandoval s sentence is both procedurally and substantively reasonable. II. Finally, ineffective. To Sandoval prove a argues claim of that his ineffective counsel was assistance of counsel, a defendant must show (1) that counsel s performance was deficient, and (2) prejudiced the defense. 668, 687 (1984). We that the deficient performance Strickland v. Washington, 466 U.S. may address a claim of ineffective assistance on direct appeal only if the lawyer s ineffectiveness conclusively Baldovinos, appears 434 on F.3d the 233, record. 239 (4th United Cir. States 2006). We v. have thoroughly reviewed the record and conclude that Sandoval has failed to demonstrate that ineffective conclusively appears on the record. assistance of counsel We therefore decline to address this argument on direct appeal, without prejudice to Sandoval s motion. right to raise this issue in a 28 U.S.C. § 2255 We have examined Sandoval s other pro se issue and conclude that it lacks merit. III. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Sandoval s conviction and sentence. This court requires that counsel inform Sandoval, in writing, of the 5 right to petition the Supreme Court of the United States for further review. If Sandoval 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 Sandoval. We dispense with oral argument because the facts and legal before contentions this court are adequately and argument presented will not in aid the the material decisional process. AFFIRMED 6
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