United States v. Resendiz , 419 F. App'x 343 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4491
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GENARO MENDOZA RESENDIZ, a/k/a Freddie,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:08-cr-00366-JAB-6)
Submitted: February 22, 2011 Decided: March 22, 2011
Before MOTZ, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
George E. Crump, III, Rockingham, 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Unpublished opinions are not binding precedent in this circuit.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:
Genaro Mendoza Resendiz pled guilty pursuant to a plea
agreement to one count of conspiracy to distribute cocaine
hydrochloride, in violation of 21 U.S.C. § 846 (2006), and was
sentenced to ninety-two months in prison. Counsel has filed a
brief in accordance with Anders v. California, 386 U.S. 738(1967), claiming that although he believes there are no
meritorious issues for appeal, it is arguable that the district
court: (i) did not comply with Fed. R. Crim. P. 11 when it
accepted Resendiz’s guilty plea because it did not inform
Resendiz of the elements the Government had to prove to
establish Resendiz’s guilt; (ii) erred when it increased
Resendiz’s offense level two levels based on his firearm
possession, pursuant to U.S. Sentencing Guidelines Manual
(“USSG”) § 2D1.1(b)(1) (2009), because Resendiz was not charged
with and did not plead guilty to firearm possession; and (iii)
imposed an unreasonable sentence because (a) it failed to fully
articulate the 18 U.S.C. § 3553(a) (2006) factors when it
imposed Resendiz’s sentence, and (b) refused to impose a variant
sentence. Resendiz has not filed a pro se supplemental brief
despite receiving notice that he may do so, and the Government
declined to file a responsive brief. Finding no error, we
affirm.
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First, we find that the district court substantially
complied with Rule 11. Because Resendiz did not move the
district court to withdraw his guilty plea, any errors in the
Rule 11 hearing are reviewed for plain error. United States v.
Martinez, 277 F.3d 517, 525-26 (4th Cir. 2002). “To establish
plain error, [Resendiz] must show that an error occurred, that
the error was plain, and that the error affected his substantial
rights.” United States v. Muhammad, 478 F.3d 247, 249 (4th Cir.
2007). Even if Resendiz satisfies these requirements, the court
retains discretion to correct the error, which it should not
exercise unless the error seriously affects the fairness,
integrity or public reputation of judicial proceedings. Id.The district court substantially complied with Rule
11’s requirements, ensuring that Resendiz’s plea was knowing and
voluntary, that he understood the rights he was giving up by
pleading guilty and the sentence he faced, and that he committed
the offense to which he was pleading guilty. Even assuming,
arguendo, that the district court erred by failing to identify
the elements of the charge to which Resendiz pled guilty, and
that the error was plain, any error did not affect Resendiz’s
substantial rights.
In the guilty plea context, a defendant meets this
burden by showing a reasonable probability that he would not
have pled guilty but for the court’s Rule 11 omissions. See
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United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009).
However, Resendiz does not suggest that he would not have pled
guilty had the Rule 11 colloquy been more exacting and, thus, he
fails to show plain error. This is especially true since
Resendiz attested in his plea agreement that the nature and
elements of the charge that the Government had to prove were
explained to him by his attorney. Accordingly, we conclude that
no error, plain or otherwise, was committed during the district
court’s acceptance of Resendiz’s guilty plea and therefore
affirm Resendiz’s conviction. See id. at 344 (“In the absence
of any evidence in the record suggesting that [the defendant]
would not have entered his plea in the absence of the error in
this case, we are left with only the existence of the error
itself.”).
We also affirm Resendiz’s sentence. After United
States v. Booker, 543 U.S. 220 (2005), this court reviews a
sentence for reasonableness, using an abuse of discretion
standard of review. Gall v. United States, 552 U.S. 38, 51
(2007). The first step in this review requires the court to
ensure that the district court committed no significant
procedural error. United States v. Evans, 526 F.3d 155, 161
(4th Cir. 2008). Procedural errors include “failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
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§ 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence - including an explanation for any deviation from the
Guidelines range.” Gall, 552 U.S. at 51.
If, and only if, this court finds the sentence
procedurally reasonable can the court consider the substantive
reasonableness of the sentence imposed. United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009). The court presumes
that a sentence within the Guidelines range is reasonable. See
United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). We
conclude that the district court committed no reversible error
when it imposed Resendiz’s sentence and thus hold that
Resendiz’s ninety-two-month sentence is reasonable.
A review of Resendiz’s presentence investigation
report (“PSR”) establishes that he was properly placed in
criminal history category I and that the district court
correctly attributed him with a total offense level of twenty-
nine, yielding a Guidelines range of eighty-seven to 108 months.
See USSG §§ 2D1.1, 3E1.1; ch.5, pt. A (2009). Although counsel
suggests that Resendiz’s offense level should not have been
increased two levels pursuant to USSG § 2D1.1(b)(1), we conclude
that it was appropriate for Resendiz’s offense level to be
increased based on his possession of a firearm during the
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commission of the crime to which he plead guilty. See USSG
§ 2D1.1(b)(1), cmt. n.3 (2009).
At sentencing, the district court adopted the PSR’s
factual findings and Guidelines range calculations, and
appropriately afforded counsel an opportunity to argue for a
variant sentence, in compliance with Fed. R. Crim. P.
32(i)(3)(A), (i)(4)(A)(i). Although not raised by counsel in
the Anders brief, we note that the district court committed
error when it failed to afford Resendiz an opportunity to
allocute prior to sentencing. See Fed. R. Crim. P.
32(i)(4)(A)(ii); see also Green v. United States, 365 U.S. 301,
305 (1961) (“[T]rial judges should leave no room for doubt that
the defendant has been issued a personal invitation to speak
prior to sentencing.”). Because Resendiz did not object
regarding allocution in the district court, that error is also
subject to plain error review. See United States v. Lewis, 10
F.3d 1086, 1092 (4th Cir. 1993) (applying plain error analysis
to allocution denial).
The denial of allocution does not per se affect a
defendant’s “substantial rights.” Id. In this case, the
district court recognized that it may have neglected to ask
Resendiz if he wished to allocute prior to imposing his sentence
and eventually asked Resendiz if he wished to allocute.
Resendiz nonetheless responded that he did not, since the issues
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he would have addressed with the district court were already
addressed by his attorney. Moreover, Resendiz does not assert
that he may have received a lesser sentence had he been allowed
to allocute sooner. Thus, because Resendiz has not established
that had he been allowed to allocute, his sentence may have been
lower, he has not established that his substantial rights were
violated and, accordingly, the district court’s error did not
amount to plain error. Cf. United States v. Cole, 27 F.3d 996,
999 (4th Cir. 1994) (recognizing plain error as a result of
district court’s failure to allow defendant to allocute where,
after issue was raised by defendant on appeal, this court
identified reasons why the district court may have imposed a
lesser sentence had defendant been allowed to address the
court).
We also discern no reversible error in the district
court’s pronouncement of Resendiz’s sentence. In evaluating a
district court’s explanation of a selected sentence, this court
has held that, although a district court must consider the
statutory factors and explain its sentence, it need not
explicitly reference § 3553(a) or discuss every single factor on
the record. United States v. Johnson, 445 F.3d 339, 345 (4th
Cir. 2006). However, the district court still “must make an
individualized assessment based on the facts presented,” and
apply the “relevant § 3553(a) factors to the specific
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circumstances of the case before it.” Carter, 564 F.3d at 328(quotation marks and emphasis omitted).
The court must also “state in open court the
particular reasons supporting its chosen sentence” and “set
forth enough to satisfy” this court that it has “considered the
parties’ arguments and has a reasoned basis for exercising [its]
own legal decisionmaking authority.” Id. (quotation marks
omitted). In other words, the reasons articulated by the
district court for a given sentence need not be “couched in the
precise language of § 3553(a)” as long as the reasons “can be
matched to a factor appropriate for consideration under that
statute and [are] clearly tied to [the defendant’s] particular
situation.” United States v. Moulden, 478 F.3d 652, 658
(4th Cir. 2007).
“By drawing arguments from § 3553 for a sentence
different than the one ultimately imposed, [Resendiz]
sufficiently alert[ed] the district court of its responsibility
to render an individualized explanation addressing those
arguments, and thus preserve[d] [his] claim.” United States v.
Lynn, 592 F.3d 572, 578 (4th Cir. 2010). Accordingly, we review
the district court’s explanation for Resendiz’s sentence under
the abuse of discretion standard. See id. at 576; cf. United
States v. Hernandez, 603 F.3d 267, 270 (4th Cir. 2010)
(reviewing claim of procedural unreasonableness for plain error
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because defendant did not argue for a sentence different from
the sentence that he received).
Prior to imposing Resendiz’s sentence, the district
court explained why it rejected counsel’s argument for a variant
sentence; namely, it did not agree that Resendiz’s conduct was
similar to the conduct of his co-conspirator to warrant the
variance. In doing so, the district court thoroughly addressed
the nature and circumstances of Resendiz’s offense.
Although the district court did not explicitly address
counsel’s arguments regarding his family, work history and lack
of criminal history prior to imposing sentence, the district
court clearly listened to counsel’s arguments and did state that
it considered Resendiz’s advisory Guidelines range, which
included Resendiz’s category I criminal history, but found that
a sentence in the middle of that range was appropriate. Having
expressly indicated that it considered the Guidelines and the
nature and circumstances of Resendiz’s crime in fashioning an
appropriate sentence, the district court undertook a sufficient
§ 3553(a) analysis in sentencing Resendiz. Cf. Johnson, 445
F.3d at 345 (recognizing that “[m]any of the § 3553(a) factors
are already incorporated into any Guidelines determination, and
the § 3553(a) factors can themselves overlap.”). We conclude
that the district court did not commit “significant procedural
error” in failing to explicitly mention § 3553(a) or more
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thoroughly explain Resendiz’s sentence. See Lynn, 592 F.3d at
575.
Having discerned no procedural sentencing error, we
presume Resendiz’s within-Guidelines sentence to be correct.
See Allen, 491 F.3d at 193. Although counsel suggests that
Resendiz’s sentence is substantively unreasonable because it is
not the variant sentence he requested, counsel’s mere suggestion
is insufficient to overcome the presumption this court affords
the within-Guidelines sentence. Accordingly, we affirm
Resendiz’s ninety-two-month 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
requires that counsel inform Resendiz, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Resendiz requests that a petition be filed, but
counsel believes that such a petition would be frivolous,
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Resendiz. 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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