United States v. Vera-Rocha , 314 F. App'x 628 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4223
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERTO VERA-ROCHA,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:07-cr-00024-F-1)
Submitted: January 30, 2009 Decided: March 5, 2009
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sol Z. Rosen, Washington, D.C., for Appellant. Anne Margaret
Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roberto Vera-Rocha pleaded guilty to one count of
illegally reentering the United States after having been
convicted of an aggravated felony, in violation of 8 U.S.C.
§ 1326(a), (b)(2) (2006). The district court sentenced Vera-
Rocha to thirty-seven months’ imprisonment, and Vera-Rocha
timely noted his appeal. On appeal, counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967). ∗ We
affirm the judgment of the district court.
We have reviewed the record and determine that the
district court complied with Fed. R. Crim. P. 11 in accepting
Vera-Rocha’s guilty plea and determined his plea was knowing and
voluntary. The district court informed Vera-Rocha of his right
to plead not guilty, to have his case tried by a jury, to have
the assistance of counsel during a trial, to challenge any
evidence offered by the Government, to not testify, and to
present evidence and compel the presence of witnesses. The
district court addressed Vera-Rocha personally and informed him
that he would be subject to a charge of perjury if he testified
falsely during his hearing. The district court also informed
Vera-Rocha of the maximum possible penalties for the charge to
∗
Vera-Rocha was informed of his right to file a pro se
supplemental brief. He has not filed a brief.
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which he was pleading guilty and determined that Vera-Rocha was
pleading guilty freely and voluntarily. Accordingly, the record
reflects the district court complied with Rule 11 in accepting
Vera-Rocha’s guilty plea.
Additionally, Vera-Rocha’s sentence was reasonable.
Following United States v. Booker, 543 U.S. 220 (2005), a
district court must engage in a multi-step process at
sentencing. First, it must calculate the appropriate Guidelines
range. It must then consider the resulting range in conjunction
with the factors set forth in 18 U.S.C. § 3553(a) (2006), and
determine an appropriate sentence.
Appellate review of a district court’s imposition of a
sentence is for abuse of discretion. Gall v. United States, 128
S. Ct. 586, 597 (2007); see also United States v. Pauley, 511
F.3d 468, 473 (4th Cir. 2007). The appellate court must first
ensure that the district court committed no procedural error,
such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence - including an explanation for any deviation
from the Guidelines range. Gall, 128 S. Ct. at 597.
If there are no procedural errors, the appellate court
then considers the substantive reasonableness of the sentence.
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Id. A substantive reasonableness review entails taking into
account the totality of the circumstances, including the extent
of any variance from the Guidelines range. Pauley, 511 F.3d at
473 (quotations and citation omitted). Even if the reviewing
court would have reached a different sentencing result on its
own, this fact alone is insufficient to justify reversal of the
district court. Id. at 474. Our review of the record leads us
to conclude that the district court committed no procedural
error in determining Vera-Rocha’s sentence.
Additionally, Vera-Rocha’s sentence was substantively
reasonable. Vera-Rocha’s sentence of thirty-seven months’
imprisonment fell within his advisory Guidelines range and the
statutory maximum. This court may presume a sentence within an
advisory Guidelines range is reasonable. Rita v. United States,
127 S. Ct. 2456, 2459 (2007). There is nothing in the record to
rebut that presumption of reasonableness in this case.
Accordingly, Vera-Rocha’s sentence was reasonable.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Vera-Rocha’s conviction and sentence. This
court requires that counsel inform Vera-Rocha, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Vera-Rocha requests that a petition be
filed, but counsel believes that such a petition would be
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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 Vera-Rocha.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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