United States v. Torres , 266 F. App'x 248 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4721
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALFREDO MONTESINOS TORRES,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:06-cr-00408)
Submitted: February 21, 2008 Decided: February 25, 2008
Before MOTZ and GREGORY, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alfredo Montesinos Torres appeals his sentence after
pleading guilty to one count of making a false statement in a
passport application, in violation of 18 U.S.C.A. § 1542 (West
Supp. 2007), and one count of aggravated identity theft during and
in relation to the false passport statement, in violation of 18
U.S.C.A. § 1028A(a)(1) (West Supp. 2007). Counsel filed an
Anders v. California, 386 U.S. 738 (1967) brief and raised the
issue of whether Torres’ sentence was erroneous. Torres was
informed of his right to file a pro se supplemental brief, but he
has not done so. The Government declined to file a reply brief.
Finding no error, we affirm.
As recently determined by the Supreme Court,
“[r]egardless of whether the sentence imposed is inside or outside
the Guidelines range, the appellate court must review the sentence
under an abuse-of-discretion standard.” Gall v. United States, 128
S. Ct. 586, 597 (2007). Appellate courts remain charged with
reviewing sentences for reasonableness. Id. at 594, 597.
Reasonableness review requires appellate consideration of both the
procedural and substantive reasonableness of a sentence. Id. at
597.
In determining whether a sentence is procedurally
reasonable, this court first assesses whether the district court
properly calculated the defendant’s advisory Guidelines range. Id.- 2 -
at 596-97. This court must then consider whether the district
court failed to consider the 18 U.S.C.A. § 3553(a) (West 2000 &
Supp. 2007) factors, selected a sentence based on “clearly
erroneous facts,” or failed to sufficiently explain the selected
sentence. Id. at 597; United States v. Pauley, 511 F.3d 468, 2007
WL 4555520, *5 (4th Cir. Dec. 28, 2007). Finally, this court
reviews the substantive reasonableness of the sentence, “taking
into account the ‘totality of the circumstances, including the
extent of any variance from the Guidelines range.’” Pauley, 2007
WL 4555520, *5 (quoting Gall, 128 S. Ct. at 597). This court
affords sentences that fall within the properly calculated
Guidelines range a presumption of reasonableness, a presumption
permitted by the Supreme Court. Rita v. United States, 127 S. Ct.
2456, 2459, 2462 (2007).
Our review of the record reveals that the Guidelines
range was properly calculated, and therefore the one-month sentence
imposed by the district court on the false statement count is
afforded a presumption of reasonableness. The district court was
obligated by statute to impose the consecutive 24-month sentence,
pursuant to 18 U.S.C.A. § 1028A (West Supp. 2007). After a
thorough review of the record, we conclude that the district court
did not abuse its discretion in imposing the twenty-five month
total sentence.
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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Torres’ conviction and sentence. 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 presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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