United States v. Ordonez-Medina , 400 F. App'x 761 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4476
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NOE DE JESUS ORDONEZ-MEDINA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:09-cr-00387-RLW-1)
Submitted: October 25, 2010 Decided: November 9, 2010
Before DAVIS and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David R. Lett, Richmond, Virginia, for Appellant. S. David
Schiller, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Noe de Jesus Ordonez-Medina appeals his conviction and
forty-six month sentence for illegal reentry after being
convicted of an aggravated felony, in violation of 8 U.S.C.
§ 1326(a), (b)(2) (2006). Counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), certifying that there
are no meritorious grounds for appeal. Counsel questions,
however, whether the district court erred in enhancing Ordonez-
Medina’s sentence based on his status as an alien whose removal
was subsequent to an aggravated felony conviction. Despite
being advised of his right to do so, Ordonez-Medina has not
filed a pro se supplemental brief. Finding no reversible error,
we affirm.
In the Anders brief, counsel argues that Form I-294
failed to specifically advise Ordonez-Medina of the enhanced
punishment for illegal reentry after conviction for an
aggravated felony. Counsel also argues that the Government
waived its right to prosecute Ordonez-Medina under the enhanced
provision set forth in § 1326(b)(2) because it failed to
criminally prosecute him under this provision at the time of his
2005 deportation. To the extent that counsel raises challenges
to Ordonez-Medina’s conviction, we conclude that such arguments
are waived. When a defendant enters a voluntary plea of guilty,
he waives his right to challenge antecedent, nonjurisdictional
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errors not logically inconsistent with the establishment of
guilt. See Menna v. New York, 423 U.S. 61, 62-63 (1975);
Tollett v. Henderson, 411 U.S. 258, 267 (1973). Because our
review of the Fed. R. Crim. P. 11 colloquy reveals that Ordonez-
Medina’s guilty plea was both knowing and voluntary, he has
waived appellate review of these issues.
To the extent that counsel asserts a sentencing error
and argues that the district court erred in imposing a sixteen-
level enhancement pursuant to U.S. Sentencing Guidelines Manual
(“USSG”) § 2L1.2(b)(1)(A)(ii) (2009), we conclude that this
argument lacks merit. We review a sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of a sentence. Id. We assess whether the
district court properly calculated the advisory guidelines
range, considered the factors set forth in 18 U.S.C. § 3553(a)
(2006), analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Id. at 49-50; see
United States v. Lynn, 592 F.3d 572, 575-76 (4th Cir. 2010);
United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). If
there is no procedural error, we review the substantive
reasonableness of the sentence, “examin[ing] the totality of the
circumstances to see whether the sentencing court abused its
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discretion in concluding that the sentence it chose satisfied
the standards set forth in § 3553(a).” United States v.
Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). If the
sentence is within the guidelines range, we apply a presumption
of reasonableness. Rita v. United States, 551 U.S. 338, 346-56
(2007) (upholding presumption of reasonableness for within-
guidelines sentence).
We have thoroughly reviewed the record and conclude
that the sentence is both procedurally and substantively
reasonable. The district court properly calculated the advisory
guidelines range, and correctly imposed the sixteen-level
enhancement pursuant to USSG § 2L1.2(b)(1)(A)(ii) (providing
that “[i]f the defendant previously was deported, or unlawfully
remained in the United States, after . . . a conviction for a
felony that is . . . a crime of violence . . . increase by 16
levels”). The district court also properly considered the
§ 3553(a) factors, made an individualized assessment based on
the facts presented, and adequately explained the reasons for
its chosen sentence. Moreover, Ordonez-Medina has failed to
overcome the presumption of reasonableness we accord his within-
guidelines sentence. See United States v. Go, 517 F.3d 216, 218
(4th Cir. 2008).
In accordance with Anders, we have reviewed the record
and found no meritorious issues on appeal. We therefore affirm
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the judgment of the district court. At this juncture, we deny
counsel’s motion to withdraw. This court requires 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 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
the client. We dispense with oral argument because the facts
and legal contentions are adequately expressed in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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