United States v. Armando Luviano-Villanueva , 556 F. App'x 254 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4659
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ARMANDO LUVIANO-VILLANUEVA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:11-cr-02135-JFA-2)
Submitted: February 20, 2014 Decided: February 25, 2014
Before DUNCAN, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis H. Lang, CALLISON TIGHE & ROBINSON, LLC, Columbia, South
Carolina, for Appellant. John David Rowell, Assistant United
States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Armando Luviano-Villanueva pleaded guilty pursuant to
a written plea agreement to conspiracy to possess with intent to
distribute over five kilograms of cocaine. He received a
168-month sentence. On appeal, counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that there are no meritorious grounds for appeal, but raising
whether Luviano-Villanueva’s waiver of appellate rights was
knowing and voluntary and whether the sentence imposed by the
district court is reasonable. Luviano-Villanueva has filed a
pro se supplemental brief. The Government declined to file a
response. We affirm.
Although counsel raises the voluntariness of the
waiver provision, the Government has not asserted the waiver.
In light of our responsibility under Anders and giving
Luviano-Villanueva the benefit of the doubt, we also review the
voluntariness of the entire guilty plea. Because
Luviano-Villanueva did not move to withdraw his plea, we review
his Fed. R. Crim. P. 11 hearing for plain error. United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Here, we
find no error, as the district court fully complied with Rule 11
when accepting Luviano-Villanueva’s plea. Given no indication
to the contrary, we therefore find that Luviano-Villanueva’s
plea was knowing and voluntary, and, consequently, final and
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binding. See United States v. Lambey, 974 F.2d 1389, 1394 (4th
Cir. 1992).
Next we review Luviano-Villanueva’s sentence for
reasonableness using an abuse of discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). The court first reviews
for significant procedural error, and if the sentence is free
from such error, we then consider substantive reasonableness.
Id. at 51. Procedural error includes improperly calculating the
Sentencing Guidelines range, treating the Guidelines range as
mandatory, failing to consider the 18 U.S.C. § 3553(a) (2012)
factors, and failing to adequately explain the selected
sentence. Id. To adequately explain the sentence, the district
court must make an “individualized assessment” by applying the
relevant § 3553(a) factors to the case’s specific circumstances.
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). The
individualized assessment need not be elaborate or lengthy, but
it must be adequate to allow meaningful appellate review. Id.
at 330. Substantive reasonableness is determined by considering
the totality of the circumstances, and if the sentence is within
the properly-calculated Guidelines range, this court applies a
presumption of reasonableness. United States v. Strieper, 666
F.3d 288, 295 (4th Cir. 2012).
The district court heard argument from the parties,
afforded Luviano-Villanueva an opportunity to allocute, declined
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Luviano-Villanueva’s request for a downward variance and imposed
a sentence of 168 months—at the bottom of the Guidelines range.
The court heard argument on the downward variance and noted that
Luviano-Villanueva did not have a prior criminal record and that
he appeared remorseful. However the court also noted that the
distribution of five kilograms of cocaine was a serious offense.
The court expressly considered the § 3553(a) factors and
rendered an individualized assessment in this case. The court
stated that the sentence was sufficiently severe, but not
greater than necessary, to punish the offense. We conclude that
Luviano-Villanueva has not rebutted the presumption of
reasonableness and that the court did not abuse its discretion
in imposing the chosen sentence.
Luviano-Villanueva’s supplemental brief argued that
his sentence constitutes cruel and unusual punishment because he
is a first-time offender and, he alleges, the nature of the
offense was not serious. Even if we may review an Eighth
Amendment proportionality challenge, the facts here do not
demonstrate a sentence that is constitutionally disproportionate
to the offense of conviction and that is cruel and unusual in
violation of the Eighth Amendment. See United States v.
Hashime, 734 F.3d 278, 286-87 (4th Cir. 2013) (King, J.,
concurring) (drawing attention “to a misperception of the law of
this Court with respect to whether a sentence short of life
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imprisonment may be reviewed to ensure that it is
constitutionally proportionate to the offense of conviction
. . . .”).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Luviano-Villanueva’s conviction and
sentence. This court requires that counsel inform
Luviano-Villanueva, in writing, of the right to petition the
Supreme Court of the United States for further review. If
Luviano-Villanueva 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 Luviano-Villanueva. 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
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