United States v. Osorio-Cortez , 372 F. App'x 363 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4527
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AVELINO OSORIO-CORTEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:06-cr-00373-NCT-1)
Submitted: February 17, 2010 Decided: April 2, 2010
Before MOTZ and SHEDD, 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Affirmed by unpublished per curiam opinion.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. Sandra Jane Hairston, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Avelino Osorio-Cortez pled guilty pursuant to a plea
agreement to conspiracy to distribute cocaine hydrochloride, 21
U.S.C.A. §§ 841(b)(1)(A), 846 (West 1999 & Supp. 2009). The
district court sentenced Osorio-Cortez to eighty-seven months’
imprisonment, a sentence at the low end of the advisory
guidelines range. On appeal, Osorio-Cortez’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. Osorio-Cortez was informed of his right to file a pro
se supplemental brief but has not done so. Finding no
reversible error, we affirm. *
Our careful review of the record convinces us that the
district court fully complied with the mandates of Fed. R. Crim.
P. 11 in accepting Osorio-Cortez’s guilty plea and ensured that
Osorio-Cortez entered his plea knowingly and voluntarily and
that the plea was supported by an independent factual basis.
*
Osorio-Cortez filed a pro se notice of appeal outside of
the appeal period, and we remanded to the district court to
determine whether Osorio-Cortez had demonstrated excusable
neglect or good cause warranting an extension of the appeal
period. See United States v. Osorio-Cortez, 308 F. App’x 664
(4th Cir. Jan. 21, 2009) (No. 08-4527). The district court
found Osorio-Cortez demonstrated excusable neglect and therefore
deemed the notice of appeal timely filed. Accordingly, we
review the appeal on the merits.
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See United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir.
1991).
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 sentence is procedurally
reasonable, this court must first assess whether the district
court properly calculated the defendant’s advisory guidelines
range. Id. at 49-50. 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
sufficiently explained the selected sentence. Id. “Regardless
of whether the district court imposes an above, below, or
within-Guidelines sentence, it must place on the record an
‘individualized assessment’ based on the particular facts of the
case before it.” 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). We presume that a sentence imposed within the
properly calculated guidelines range is reasonable. Rita v.
United States, 551 U.S. 338, 346-56 (2007); United States v.
Smith, 566 F.3d 410, 414 (4th Cir. 2009). Applying the
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presumption of reasonableness to Osorio-Cortez’s within-
guidelines sentence, which Osorio-Cortez 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 entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Osorio-Cortez, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Osorio-Cortez 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 Osorio-Cortez. 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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