US v. Bidcar Orozco Orozco, No. 13-4991 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4991 UNITED STATES OF AMERICA, Plaintiff Appellee, v. BIDCAR EDUARDO OROZCO OROZCO, a/k/a Bidcar Eduardo Orosco, a/k/a Bidcar Ezer Orozco-Orozco, a/k/a Jesus Miguel Sosa, a/k/a Eric Castro, a/k/a Erik Rodriguez Castro, a/k/a Castillo Erik Rodriguez, a/k/a Ruben Matias Calmo Porfirio, a/k/a Justo Pastor Padilla, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:13-cr-00225-TDS-1) Submitted: July 24, 2014 Before FLOYD and Circuit Judge. THACKER, Decided: July 28, 2014 Circuit Judges, and DAVIS, Senior Affirmed by unpublished per curiam opinion. Sandra Baughn Jelovsek, LAW OFFICE OF SANDRA BAUGHN JELOVSEK, Johnson City, Tennessee, 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 Unpublished opinions are not binding precedent in this circuit.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: Bidcar Eduardo Orozco Orozco appeals his conviction and ninety-six-month sentence imposed following his guilty plea to illegal reentry subsequent to an aggravated violation of 8 U.S.C. § 1326(a), (b)(2) (2012). felony, in On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious issues for review but questioning whether (1) Orozco Orozco s plea was knowing and voluntary, (2) Orozco Orozco s prior conviction was properly designated an aggravated felony under § 1326(b)(2), (3) the district court imposed a reasonable sentence, (4) Orozco Orozco s statements to law enforcement were taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and (5) Orozco Orozco was informed after his arrest of his rights under the Vienna Convention. Before For the reasons that follow, we affirm. accepting a guilty plea, the district court must conduct a plea colloquy in which it informs the defendant of, and determines that he comprehends, the nature of the charge to which he is pleading guilty, the maximum possible penalty he faces, any mandatory minimum penalty, relinquishing by pleading guilty. and the rights he is Fed. R. Crim. P. 11(b)(1); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). The court also must ensure that the plea is voluntary, supported by an independent factual basis, and not the result of force, 2 threats, or promises outside the plea agreement. P. 11(b)(2), (3). Fed. R. Crim. Because Orozco Orozco did not challenge his guilty plea in the district court, we review the plea colloquy 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). Here, the district court fully complied with the requirements of Rule 11, ensuring that Orozco Orozco s plea was knowing and voluntary and supported by an independent factual basis. We understanding discern of the no basis statutory to doubt penalties Orozco applicable Orozco s to his offense, or to question his knowing and voluntary plea as a result of the advisements regarding those penalties provided to him during the plea colloquy. A defendant who illegally reenters the United States after having aggravated been felony imprisonment. 8 removed is following subject U.S.C. to a § 1326(b)(2). a conviction twenty-year Aggravated for an term of felonies includes crime[s] of violence, as defined in 18 U.S.C. § 16 (2012), for which the term of imprisonment is at least one year. 8 U.S.C. § 1101(43)(F) (2012). A crime of violence includes an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another. 18 U.S.C. § 16(a). 3 As counsel concedes, Orozco Orozco s conviction for assault with a deadly weapon inflicting serious bodily violence. injury See is N.C. properly Gen. classified Stat. § 14-32 as a crime (2013); see of also State v. Walker, 694 S.E.2d 484, 494-95 (N.C. Ct. App. 2010) (defining serious injury ). We review a sentence for reasonableness, applying a deferential abuse-of-discretion standard. States, 552 U.S. 38, 41 (2007). district court including improper insufficient factors, committed no and inadequate Id. at 51. of v. United We first ensure that the significant calculation consideration Gall of the error, Guidelines the 18 explanation procedural range, U.S.C. of the § 3553(a) sentence (2012) imposed. If we find no procedural error, we examine the substantive reasonableness of the sentence under the totality of the circumstances. Id. but necessary, not greater sentencing. than The sentence must be sufficient, 18 U.S.C. § 3553(a). to satisfy the goals of A within-Guidelines sentence is presumed on appeal to be substantively reasonable, and the defendant bears the burden to rebut the presumption by demonstrating that the sentence is unreasonable when measured against the § 3553(a) factors. 445 F.3d 375, 379 (4th Cir. United States v. Montes-Pineda, 2006) omitted). 4 (internal quotation marks Our review of the record before us demonstrates that the sentence is procedurally reasonable, as the district court properly calculated the Guidelines range, considered the parties arguments, and provided a thorough explanation for the sentence imposed. presumption of Further, Orozco Orozco fails to rebut the reasonableness accorded his within-Guidelines sentence. Counsel also questions whether Orozco Orozco s arrest violated his rights under the Vienna Convention and whether his post-arrest questioning violated Miranda. However, Orozco Orozco s guilty plea forecloses relief on these grounds. See United States v. Moussaoui, 591 F.3d 263, 279 (4th Cir. 2010) ( [T]he defendant who has pled guilty has no non-jurisdictional ground upon which to attack that judgment except the inadequacy of the plea or the government s power to bring any indictment at all. (internal quotation Additionally, we have supplemental brief and marks reviewed discern and citations Orozco from it omitted)). Orozco s no se basis valid pro to overturn the criminal judgment. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore This court writing, of affirm Orozco requires that his right to Orozco s conviction counsel inform petition the 5 and Orozco Supreme sentence. Orozco, Court of in the United States for further review. that a petition be filed, but If Orozco Orozco requests 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 Orozco Orozco. 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 6

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