United States v. Chay-De La Cruz , 383 F. App'x 340 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4515
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAVIER CHAY-DE LA CRUZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:07-cr-00102-RJC-1)
Submitted: May 26, 2010 Decided: June 18, 2010
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael N. Loebl, FULCHER HAGLER LLP, Augusta, Georgia, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina; Kenneth Michel Smith, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Javier Chay-De La Cruz pled guilty, without a plea
agreement, to illegal reentry of a deported alien after a
conviction of an aggravated felony, in violation of 8 U.S.C.
§ 1326(a), (b)(2) (2006). The court sentenced Chay-De La Cruz
to fifty-seven months in prison. Chay-De La Cruz appealed.
Defense counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), finding no meritorious grounds for appeal
but challenging the adequacy of the Fed. R. Crim. P. 11 hearing
and questioning the reasonableness of Chay-De La Cruz’s
sentence. Chay-De La Cruz filed a pro se supplemental brief
asserting claims of ineffective assistance of trial counsel. 1
Because Chay-De La Cruz did not move in the district
court to withdraw his guilty plea, any error in the Rule 11
hearing is reviewed for plain error. United States v. Martinez,
277 F.3d 517, 525 (4th Cir. 2002) (discussing standard). Our
careful review of the record convinces us that the district
court substantially complied with the mandates of Rule 11 in
accepting Chay-De La Cruz’s guilty plea and ensured that he
entered his plea knowingly and voluntarily and that the plea was
1
Chay-De La Cruz was represented by different counsel in
the district court.
2
supported by an independent factual basis. 2 See United States v.
DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991).
Turning to Chay-De La Cruz’s sentence, we review his
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 the sentence. Id. We must
assess whether the district court properly calculated the
guidelines range, considered the 18 U.S.C. § 3553(a) (2006)
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) (“[A]n
individualized explanation must accompany every sentence.”);
United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). An
extensive explanation is not required as long as the appellate
court is satisfied “‘that [the district court] has considered
the parties’ arguments and has a reasoned basis for exercising
[its] own legal decisionmaking authority.’” United States v.
Engle, 592 F.3d 495, 500 (4th Cir. 2010) (quoting Rita v. United
States, 551 U.S. 338, 356 (2007)). Finally, we review the
2
As counsel acknowledges, Chay-De La Cruz consented to
proceed before a magistrate judge for the plea hearing, and the
magistrate judge was properly authorized to conduct the Rule 11
hearing. United States v. Osborne, 345 F.3d 281, 288 (4th Cir.
2003).
3
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).
Defense counsel questions the calculation of the
guidelines range, specifically the sixteen-level increase in
offense level imposed under U.S. Sentencing Guidelines Manual
§ 2L1.1(b)(1)(A) (2007), based on Chay-De La Cruz’s prior felony
conviction for transporting aliens for the purpose of commercial
advantage or private financial gain, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii) (2006). Section 2L1.1(b)(1)(A) calls for a
sixteen-level enhancement “[i]f the defendant previously was
deported . . . after . . . a conviction for a felony that is
. . . an alien smuggling offense.” USSG § 2L1.1(b)(1)(A). The
commentary to this section defines an “alien smuggling offense”
the same way it is defined in 8 U.S.C. § 1101(a)(43)(N) (2006).
That provision specifically references 8 U.S.C. § 1324(a)(1)(A),
the statute under which Chay-De La Cruz was previously
convicted. We find no error in the application of the sixteen-
level enhancement.
Our review of the record leads us to conclude that the
district court properly calculated Chay-De La Cruz’s guidelines
range, considered the § 3553 factors, considered counsel’s
4
arguments and Chay-De La Cruz’s allocution, and adequately
explained the reasons for the sentence imposed. We therefore
find that the sentence was procedurally reasonable. Moreover,
nothing in the record overcomes the presumption of
reasonableness afforded Chay-De La Cruz’s within-guidelines
sentence. United States v. Wright, 594 F.3d 259, 267 (4th Cir.
2010); Rita v. United States, 551 U.S. 338, 347 (2007)
(upholding rebuttable presumption of reasonableness for within-
guidelines sentence).
In accordance with Anders, we have reviewed the record
for any meritorious issues for appeal and have found none. 3
Thus, we affirm the district court’s judgment. 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 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
3
We have reviewed the claims in Chay-De La Cruz’s pro se
supplemental brief. Because it does not conclusively appear
from the record that Chay-De La Cruz was denied effective
assistance of counsel, we conclude that his claims are not
cognizable on direct appeal. United States v. Richardson, 195
F.3d 192, 198 (4th Cir. 1999); United States v. King, 119 F.3d
290, 295 (4th Cir. 1997).
5
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
6