United States v. Galvan , 378 F. App'x 365 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4035
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE LUIS GALVAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:05-cr-01277-HFF-2)
Submitted: April 8, 2010 Decided: May 13, 2010
Before TRAXLER, Chief Judge, and GREGORY and SHEDD, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Jessica Salvini, SALVINI & BENNETT, LLC, Greenville, South
Carolina, for Appellant. Elizabeth Jean Howard, Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Luis Galvan pled guilty, without the benefit of a
written plea agreement, to conspiracy to possess with intent to
distribute fifty grams or more of methamphetamine and 500 grams
or more of a substance containing a detectable amount of
methamphetamine, in violation of 21 U.S.C. § 846 (2006). The
district court sentenced him to 108 months of imprisonment, the
top of the advisory guidelines range. On appeal, Galvan’s
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating that, in her view, there are no
meritorious issues for appeal but challenging the district
court’s determination of the base offense level and questioning
whether trial counsel provided ineffective assistance. Galvan
has filed a pro se supplemental brief, asserting that the
district court failed to consider adequately the statutory
sentencing factors and explain sufficiently the chosen sentence.
Finding no reversible error, we affirm.
Counsel questions whether the district court properly
established the base offense level of thirty-four. In his pro
se brief, Galvan contends that the district court did not
consider adequately the factors set forth in 18 U.S.C. § 3553(a)
(2006), or explain the chosen sentence. We review a sentence
for reasonableness under an abuse-of-discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007). This review
2
requires appellate consideration of both the procedural and
substantive reasonableness of a sentence. Id. We must assess
whether the district court properly calculated the guidelines
range, considered the § 3553(a) factors, 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, 576 (4th Cir. 2010). Finally, we review the
substantive reasonableness of the sentence, “examin[ing] the
totality of the circumstances to see whether the sentencing
court abused its 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).
Because Galvan did not object to the base offense
level established at sentencing, our review is for plain error.
Lynn, 592 F.3d at 576-77. “To establish plain error, [Galvan]
must show that an error (1) was made, (2) is plain (i.e., clear
or obvious), and (3) affects substantial rights.” Id. at 577.
If Galvan establishes these requirements, this court “may
exercise its discretion to correct the error only if it
seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Id. (internal quotation marks and
citation omitted).
At his plea hearing, Galvan admitted responsibility
for 398.3 grams of methamphetamine, and, based on that amount,
3
the district court properly established a base offense level of
thirty-four. See U.S. Sentencing Guidelines Manual
§ 2D1.1(c)(3) (2005) (applicable to offenses involving at least
150, but less than 500, grams of actual methamphetamine). Thus,
there is no error, plain or otherwise, in the district court’s
establishment of the base offense level.
Next, Galvan asserts that the district court did not
consider adequately the § 3553(a) factors or explain
sufficiently the reasons for sentencing him at the top of the
guidelines range after he had received a safety-valve reduction
under USSG § 5C1.2. Because Galvan did not object on these
grounds in the district court, we review his claims for plain
error. Lynn, 592 F.3d at 579-80. Even assuming that the
district court committed plain error in Galvan’s case, Galvan
has not demonstrated on appeal that the error “had a prejudicial
effect on the sentence imposed.” Id. at 580.
To the extent Galvan also challenges the substantive
reasonableness of his sentence, this court “may presume that a
sentence within the properly calculated Guidelines range is
reasonable.” United States v. Raby, 575 F.3d 376, 381 (4th Cir.
2009). Because the 108-month sentence is the top of the
properly calculated guidelines range and well within the
statutory maximum term of life imprisonment, see 21 U.S.C.A.
§ 841(b)(1)(A)(viii) (West Supp. 2009), and Galvan has not
4
rebutted the presumption of reasonableness, we conclude that the
sentence imposed by the district court is reasonable.
Finally, appellate counsel suggests that trial counsel
provided ineffective assistance. This court “may address
[claims of ineffective assistance] on direct appeal only if the
lawyer’s ineffectiveness conclusively appears from the record.”
United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
Because Galvan’s claim does not meet this high standard, we
decline to review this claim on direct appeal.
In accordance with Anders, we have reviewed the record
for any meritorious issues and have found none. We therefore
affirm the district court’s judgment. This court requires that
counsel inform her client, in writing, of the 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
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
5