United States v. Toribio Carbajal-Aguirre , 546 F. App'x 255 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4482
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TORIBIO CARBAJAL-AGUIRRE, a/k/a Silverio Hernandez-Maya,
a/k/a Toribio Carbajal, a/k/a Silverio Hernandez Maya, a/k/a
Pedro Aguire Benitez,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cr-00035-CCE-1)
Submitted: November 19, 2013 Decided: November 21, 2013
Before WYNN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Stacey D. Rubain, QUANDER & RUBAIN, P.A., Winston-Salem, North
Carolina, for Appellant. Kyle David Pousson, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Toribio Carbajal-Aguirre pleaded guilty pursuant to a
written plea agreement to illegally reentering the United States
after having been removed based upon a felony conviction, in
violation of 8 U.S.C. § 1326(a), (b)(2) (2012), and received a
sentence of seventy-five months’ imprisonment. On appeal,
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), certifying that there are no meritorious issues
for appeal, but questioning the district court’s compliance with
Federal Rule of Criminal Procedure 11 and the reasonableness of
the sentence. Carbajal-Aguirre was advised of his right to file
a pro se supplemental brief, but has not done so. The
Government declined to file a brief. We affirm.
Because Carbajal-Aguirre did not move in the district
court to withdraw his guilty plea, we review the Rule 11 hearing
for plain error. United States v. Martinez, 277 F.3d 517, 525
(4th Cir. 2002). To prevail under this standard, Carbajal-
Aguirre must establish that an error occurred, was plain, and
affected his substantial rights. United States v. Massenburg,
564 F.3d 337, 342-43 (4th Cir. 2009). Our review of the record
establishes that the district court substantially complied with
Rule 11’s requirements, ensuring that Carbajal-Aguirre’s plea
was knowing and voluntary.
2
We review Carbajal-Aguirre’s sentence for
reasonableness, “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This
review requires consideration of both the procedural and
substantive reasonableness of the sentence. Id. at 51; United
States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). After
determining whether the district court correctly calculated the
advisory Guidelines range, we must decide whether the court
considered the 18 U.S.C. § 3553(a) (2012) factors, analyzed the
arguments presented by the parties, and sufficiently explained
the selected sentence. Lynn, 592 F.3d at 575-76; United States
v. Carter, 564 F.3d 325, 330 (4th Cir. 2009).
Once we have determined that the sentence is free of
procedural error, we consider the substantive reasonableness of
the sentence, “tak[ing] into account the totality of the
circumstances.” Gall, 552 U.S. at 51. If the sentence is
within the appropriate Guidelines range, we presume that the
sentence is reasonable. United States v. Abu Ali, 528 F.3d 210,
261 (4th Cir. 2008). Such a presumption is rebutted only if the
defendant demonstrates “that the sentence is unreasonable when
measured against the § 3553(a) factors.” United States v.
Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal
quotation marks omitted).
3
We conclude that the district court committed neither
procedural nor substantive error in sentencing. The court
correctly calculated and considered as advisory the applicable
Guidelines range. After hearing argument from defense counsel
for a downward variance and allocution from Carbajal-Aguirre,
the district court explained that the within-Guidelines sentence
was warranted in light of Carbajal-Aguirre’s prior felony
convictions. Counsel does not offer any grounds to rebut the
presumption on appeal that Carbajal-Aguirre’s within-Guidelines
sentence is substantively reasonable, and our review reveals
none. Accordingly, we conclude that the district court did not
abuse its discretion in sentencing Carbajal-Aguirre.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Carbajal-Aguirre’s conviction and
sentence. This court requires that counsel inform Carbajal-
Aguirre, in writing, of the right to petition the Supreme Court
of the United States for further review. If Carbajal-Aguirre
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 Carbajal-
Aguirre.
AFFIRMED
4