US v. Cesar Linares, No. 14-4084 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4084 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CESAR ANDRES LINARES, Defendant -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-00164-TDS-1) Submitted: July 8, 2014 Before MOTZ and Circuit Judge. GREGORY, Decided: Circuit Judges, and July 16, 2014 DAVIS, Senior Affirmed by unpublished per curiam opinion. Walter C. Holton, Jr., HOLTON LAW FIRM, PLLC, Winston-Salem, 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 Unpublished opinions are not binding precedent in this circuit.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: Cesar Andres Linares pled guilty pursuant to a plea agreement to one count of possession with intent to distribute 1000 kilograms or more of marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) (2012). The district court calculated Linares Guidelines range at 121 to 151 months imprisonment, U.S. Sentencing Guidelines Manual (2013), and sentenced him to 121 months imprisonment. On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal, but raising as an issue for review whether the discretion in imposing sentence. district court abused its Linares was informed of his right to file a pro se supplemental brief, but he has not done so. The Government declined to file a brief. We affirm. We review Linares sentence for reasonableness under a deferential States, 552 abuse-of-discretion U.S. 38, 41, 51 standard. (2007). Gall This v. review United entails appellate consideration of both the procedural and substantive reasonableness of the sentence. procedural reasonableness, court properly range, gave calculated the parties we Id. at 51. consider whether the defendant s an opportunity In determining the advisory to district Guidelines argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012) 2 factors, selected a sentence based on clearly erroneous facts, and sufficiently explained the selected sentence. If the sentence is free of Id. at 49 51. significant procedural error, we review it for substantive reasonableness, tak[ing] into account the totality of the circumstances. If the sentence is within the properly calculated Id. at 51. Guidelines range, we apply a presumption on appeal that the sentence is substantively reasonable. 289 (4th Cir. 2012). United States v. Susi, 674 F.3d 278, Such a presumption is rebutted only if the defendant shows 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) (internal quotation marks omitted). In this case, the district court correctly calculated and considered the advisory Guidelines range, heard argument from counsel, and afforded Linares the opportunity to allocute. The court explained that the 121-month sentence was warranted in light of the nature and circumstances of Linares offense conduct, his history and characteristics, and the need for the sentence to reflect the seriousness of his offense conduct, to promote respect for the law, to provide just punishment, to afford adequate deterrence to criminal conduct, and to protect the public. 18 U.S.C. § 3553(a)(1), (2)(A)-(C). 3 Counsel argues that the 121-month sentence is unreasonable because the district court did not properly weigh Linares cooperation with law enforcement. We reject this argument because it essentially asks this court to substitute its judgment for that of the district court. may have weighed the § 3553(a) factors While this court differently had it imposed sentence in the first instance, we defer to the district court s decision that a 121-month sentence achieved the purposes of sentencing in Linares case. See Gall, 552 U.S. at 51 (explaining that appellate courts must give due deference to the district court s decision that the § 3553(a) factors, on a whole, justify the sentence imposed); United States v. Rivera-Santana, 668 F.3d 95, 105 (4th Cir. 2012) (stating it was within district court s discretion to accord more weight to a host of aggravating factors in defendant s case and decide that the sentence imposed would serve the § 3553 factors on the whole); United States v. Jeffery, 631 F.3d 669, 679 (4th Cir. 2011) ( [D]istrict courts have extremely broad discretion when determining factors. ). the weight Counsel to thus be given fails to each rebut of the the § 3553(a) presumption on appeal that Linares within-Guidelines sentence is substantively reasonable. Accordingly, we conclude that the district court did not abuse its discretion in sentencing Linares. 4 In remainder of accordance the with record Anders, in this meritorious issues for appeal. court s judgment. This we case have and reviewed have the found no We therefore affirm the district court requires that counsel inform Linares, in writing, of the right to petition the Supreme Court of the United States for further review. that a petition be filed, but counsel If Linares requests 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 Linares. 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 5
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