United States v. Taurino Mariano , 676 F. App'x 153 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4452
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TAURINO ALONSO MARIANO, a/k/a Taurino M. Alonso, a/k/a
Santana Augustine Santana, a/k/a Al Gonsales, a/k/a Carlos
Gonzales, a/k/a Pedro Jaimes, a/k/a Juan Dedios Ocampos,
a/k/a Juan Delos Campos, a/k/a Aldo Hernandez Gonzalez,
a/k/a M. Taurino, a/k/a Laureano Alonso Mariano,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Michael F. Urbanski,
District Judge. (5:14-cr-00007-MFU-2)
Submitted: January 12, 2017 Decided: January 24, 2017
Before NIEMEYER, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Abram J. Pafford, THE PAFFORD LAW FIRM, PLLC, Lynchburg,
Virginia, for Appellant. Grayson A. Hoffman, Assistant United
States Attorney, Harrisonburg, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Taurino Alonso Mariano pled guilty, pursuant to a written
plea agreement, to conspiracy to distribute 500 grams or more of
methamphetamine, in violation of 21 U.S.C. § 846 (2012). The
district court sentenced Mariano to 240 months’ imprisonment.
In accordance with Anders v. California, 386 U.S. 738 (1967),
Mariano’s counsel has filed a brief certifying there are no
meritorious grounds for appeal but questioning whether the
Government unconstitutionally filed an information pursuant to
21 U.S.C. § 851 (2012) (“the information”) and whether an
adequate factual basis supports Mariano’s plea. We affirm the
district court’s judgment.
Because Mariano did not move to withdraw his guilty plea,
we review the adequacy of the Fed. R. Crim. P. 11 hearing for
plain error. United States v. Sanya, 774 F.3d 812, 815 (4th
Cir. 2014). Before accepting a guilty plea, the district court
must conduct a plea colloquy in which it informs the defendant
of, and determines that he understands, the rights he is
relinquishing by pleading guilty, the charge to which he is
pleading, and the maximum and mandatory minimum penalties he
faces. 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 and not the result of threats, force, or
promises not contained in the plea agreement, Fed. R. Crim. P.
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11(b)(2), and “that there is a factual basis for the plea,” Fed.
R. Crim. P. 11(b)(3).
A knowing and voluntary guilty plea “conclusively
establishes the elements of the offense and the material facts
necessary to support the conviction.” United States v. Willis,
992 F.2d 489, 490 (4th Cir. 1993). Here, Mariano knowingly and
voluntarily pled guilty. Moreover, the statement of facts
introduced at the plea hearing stated that Mariano personally
delivered over 500 grams of methamphetamine during the course of
the conspiracy. See United States v. Ketchum, 550 F.3d 363, 367
(4th Cir. 2008). Thus, we conclude the district court did not
plainly err in finding that a sufficient factual basis supports
Mariano’s plea.
Counsel also questions whether the Government had
unconstitutional motives in filing the information. Because
Mariano failed to object to the information in the district
court, we review for plain error. See United States v. Moore,
810 F.3d 932, 939 (4th Cir. 2016) (setting forth standard of
review). To challenge the Government’s decision to file the
information, Mariano “must present at least some evidence to
show not only that he was singled out but also that he was
singled out for reasons that are invidious or in bad faith.”
United States v. Sanchez, 517 F.3d 651, 671 (2d Cir. 2008)
(internal quotation marks omitted); see also United States v.
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Venable, 666 F.3d 893, 900 (4th Cir. 2012) (holding that to
raise a selective prosecution claim, “a criminal defendant must
present clear evidence . . . demonstrating that the government
was motivated by a discriminatory purpose to adopt a
prosecutorial policy with a discriminatory effect” (internal
quotation marks omitted)).
Mariano concedes that he lacks evidence to show that the
Government had an unconstitutional motive in filing the
information. Moreover, the record reveals an adequate basis for
filing the information in this case — Mariano’s numerous
convictions for controlled substance offenses. Thus, we discern
no unconstitutional motives on the part of the Government.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious grounds for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Mariano, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Mariano 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 Mariano.
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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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