United States v. Peribian-Gonzalez , 353 F. App'x 853 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4460
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CUAUTEMOC PERIBIAN-GONZALEZ, a/k/a Juan, a/k/a Gordo,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Sol Blatt, Jr., Senior District
Judge. (9:06-cr-00158-SB)
Submitted: November 9, 2009 Decided: November 24, 2009
Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Christopher Mills, J. CHRISTOPHER MILLS, LLC, Columbia, South
Carolina, for Appellant. Carlton R. Bourne, Jr., Eric John
Klumb, Reginald I. Lloyd, Assistant United States Attorneys,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cuautemoc Peribian-Gonzalez pled guilty, pursuant to a
written plea agreement, to one count of conspiracy to possess
with intent to distribute and to distribute over 500 grams of
cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846
(2006). The district court ultimately sentenced Peribian-
Gonzalez to 400 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 the following potential claims: whether the district
court complied with Fed. R. Crim. P. 11 in accepting Peribian-
Gonzalez’s guilty plea, whether the district court erred in
denying his motion to suppress certain evidence, and whether the
sentence is reasonable. Peribian-Gonzalez has filed a
supplemental pro se brief in which he also challenges the
validity of his guilty plea and claims that the district court
violated the holding in United States v. Booker, 543 U.S. 220(2005), by making drug quantity findings that were not set forth
in the indictment and proved beyond a reasonable doubt.
Our review of the record reveals that the district
court fully complied with the requirements of Fed. R. Crim. P.
11 in accepting Peribian-Gonzalez’s guilty plea. The court
informed Peribian-Gonzalez, through an interpreter, of his right
to plead not guilty and have his case tried by a jury. The
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district court also reviewed the constitutional rights Peribian-
Gonzalez was forfeiting by entering his guilty plea. The
district court ensured that Peribian-Gonzalez understood the
nature of the charge to which he was pleading guilty, the
minimum and maximum possible penalties, the court’s obligation
to impose a special assessment, and the advisory sentencing
guidelines scheme. The court determined that Peribian-Gonzalez
was pleading guilty freely and voluntarily and that a factual
basis supported the plea. Accordingly, we find no error by the
district court in accepting Peribian-Gonzalez’s guilty plea.
See United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th
Cir. 1991).
Next, counsel questions whether the district court
erred in denying Peribian-Gonzalez’s motion to suppress.
However, counsel concedes that Peribian-Gonzalez did not enter a
conditional guilty plea, and, therefore, his valid guilty plea
constitutes a waiver of all antecedent non-jurisdictional
defects. See Tollett v. Henderson, 411 U.S. 258, 267 (1973).
Finally, Peribian-Gonzalez challenges the sentence
imposed. In his supplemental pro se brief, he first claims that
the district court violated the holding in Booker by making
findings as to drug quantity without having those facts set
forth in the indictment and proved beyond a reasonable doubt.
However, this claim is without merit. See Rita v. United
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States, 551 U.S. 338, 353 (2007) (recognizing that its “Sixth
Amendment cases do not automatically forbid a sentencing court
to take account of factual matters not determined by a jury and
to increase the sentence in consequence”); United States v.
Brooks, 524 F.3d 549, 561-62 (4th Cir.) (“[A] sentencing court
is entitled to find individualized drug quantities by a
preponderance of the evidence, as part of its calculation of an
advisory Guidelines range, . . . so long as its resulting
sentence is within the relevant statutory range.”), cert.
denied, Witherspoon v. United States, 129 S. Ct. 519 (2008).
Counsel also questions the reasonableness of Peribian-
Gonzalez’s sentence. We review a sentence for reasonableness
under an abuse of discretion standard. Gall v. United States,
552 U.S. 38, , 128 S. Ct. 586, 597 (2007). This review
requires appellate consideration of both the procedural and
substantive reasonableness of a sentence. Id. After
determining whether the district court properly calculated the
defendant’s advisory guidelines range, we must then consider
whether the district court considered the § 3553(a) factors,
analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Id. at 596-97;
see United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009).
The record must establish that the district court made “an
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individualized assessment based on the facts presented.” Gall,
128 S. Ct. at 597.
We find no error by the district court. The court
properly calculated Peribian-Gonzalez’s guidelines range.
Moreover, the court’s statements at Peribian-Gonzalez’s
sentencing hearing reflect an “individualized assessment” of the
facts pertaining to his sentence.
We also find the sentence to be substantively
reasonable as it is below the statutory maximum of 480 months
and below the advisory guideline range of life imprisonment.
Peribian-Gonzalez has not overcome the presumption that the
sentence is reasonable. See Rita, 551 U.S. at 347; United
States v. Smith, 566 F.3d 410, 414 (4th Cir. 2009).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm the judgment of the district
court. We require that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States
for further review. If the client requests that a petition be
filed, but counsel believes that such filing 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 the client.
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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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