United States v. Silvas , 365 F. App'x 492 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4518
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MIGUEL VARGAS SILVAS, a/k/a Miguel Flores Sanchez, a/k/a
Miguel Vargas, a/k/a Miguel Silvas-Vargas,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00251-JAB-1)
Submitted: December 10, 2009 Decided: February 18, 2010
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Angela Hewlett Miller, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Miguel Vargas Silvas appeals the district court’s
judgment entered pursuant to his guilty plea to unauthorized
reentry of a removed alien previously convicted of an aggravated
felony offense, in violation of 8 U.S.C. § 1326(a), (b)(2)
(2006). Counsel for Silvas filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which she asserts there are
no meritorious issues for appeal, but asks this court to review
the adequacy of the plea hearing and the reasonableness of
Silvas’ sentence. Silvas was notified of the opportunity to
file a pro se supplemental brief, but has failed to do so.
Finding no error, we affirm.
Under Fed. R. Crim. P. 11(b)(1), the district court
must address the defendant in open court and inform him of the
following: the nature of the charge; any mandatory minimum
sentence and the maximum possible sentence; the applicability of
the Sentencing Guidelines; the court’s obligation to impose a
special assessment; the defendant’s right to an attorney; his
right to plead not guilty and be tried by a jury with the
assistance of counsel; his right to confront and cross-examine
witnesses; his right against self-incrimination; and his right
to testify, present evidence, and compel the attendance of
witnesses. The defendant also must be told that a guilty plea
waives any further trial and that his answers at the proceeding
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may be used against him in a prosecution for perjury. Under
Rule 11(b)(2), the court must address the defendant to determine
that the plea is voluntary. The court must determine a factual
basis for the plea under Rule 11(b)(3) and require disclosure of
any plea agreement under Rule 11(c)(2). Because Silvas did not
move in the district court to withdraw his guilty plea, any
challenges to the Rule 11 hearing are reviewed for plain error.
See United States v. Martinez, 277 F.3d 517, 524-25 (4th Cir.
2002).
During the plea hearing, the district court informed
Silvas of the nature of the charges and penalties he faced,
found that Silvas was competent and entering his plea
voluntarily, and determined there was a sufficient factual basis
for the plea. However, the district court’s recitation of the
rights Silvas was forfeiting as a result of his guilty plea was
perfunctory and limited. While the district court informed
Silvas that he was giving up his right to a jury trial and “all
your Constitutional rights relating to trial by jury,” the court
failed to specifically inform Silvas of his right to be
represented by counsel at trial, his right to confront and
cross-examine witnesses, his right against self-incrimination,
and his right to testify, present evidence, and compel the
attendance of witnesses. See Fed. R. Crim. P. 11(b)(1)(D)-(E).
Furthermore, Silvas’ answer to the district court’s inquiry
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regarding his forfeited rights was somewhat disconcerting, as he
replied, “I’m not giving up anything, I just want to plea
guilty.” When the district court subsequently asked whether he
was requesting a jury trial, Silvas merely replied, “[n]o, what
for?”
Despite the district court’s failure to fully inform
Silvas of the rights he was waiving by entering his guilty plea,
there is no evidence in the record that, absent the Rule 11
errors, Silvas “would not have entered into his plea agreement
with the Government.” Martinez, 277 F.3d at 532. The numerous
trial rights that Silvas relinquished were detailed in his plea
agreement, and there is no indication in the record that Silvas
desired to contest his guilt on the charged offense.
Accordingly, any error by the district court did not affect
Silvas’ substantial rights. We therefore conclude that the
record establishes that Silvas knowingly and voluntarily entered
into his guilty plea with an adequate understanding of the
consequences.
Silvas also asks this court to review the
reasonableness of his 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 requires
appellate consideration of both the procedural and substantive
reasonableness of a sentence. Id. In determining whether a
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sentence is procedurally reasonable, this court must first
assess whether the district court properly calculated the
defendant’s advisory guidelines range. Id. at 596-97. This
court then must consider whether the district court considered
the factors in 18 U.S.C. § 3553(a) (2006), analyzed the
arguments presented by the parties, and made “an individualized
assessment based on the facts presented.” Gall, 128 S. Ct. at
597; United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009).
Finally, we review the substantive reasonableness of the
sentence. United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007).
Our review of the record leads us to conclude that the
district court committed no procedural error in this case.
Turning to the substantive reasonableness of the sentence, we
presume that a sentence imposed within the properly calculated
guidelines range is reasonable. Rita v. United States, 551 U.S.
338, 347 (2007); United States v. Smith, 566 F.3d 410, 414 (4th
Cir. 2009). Applying the presumption of reasonableness to
Silvas’ within-guidelines sentence, which Silvas fails to rebut
on appeal, we find that the district court did not abuse its
discretion in imposing the chosen sentence.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
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requires that counsel inform her 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 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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