United States v. Hildeberto Gonzalez-Chavez , 524 F. App'x 36 ( 2013 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 12-4822
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    HILDEBERTO GONZALEZ-CHAVEZ, a/k/a Beetle,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western
    District of North Carolina, at Statesville.         Richard L.
    Voorhees, District Judge. (5:11-cr-00022-RLV-DSC-2)
    Submitted:   May 8, 2013                      Decided:   May 10, 2013
    Before SHEDD, DUNCAN, and WYNN, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Samuel B. Winthrop, WINTHROP & WINTHROP, Statesville, North
    Carolina, for Appellant.    Steven R. Kaufman, Assistant United
    States Attorney, Charlotte, North Carolina; Amy Elizabeth Ray,
    Assistant United States Attorney, Asheville, North Carolina, for
    Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Hildeberto Gonzalez-Chavez pleaded guilty, pursuant to
    a   written          plea    agreement,        to        conspiracy        to     manufacture,
    distribute           and       possess         with         intent          to         distribute
    methamphetamine, in violation of 
    21 U.S.C. §§ 841
    (a)(1), 846
    (2006).        The district court sentenced Gonzalez-Chavez to 168
    months’    imprisonment.            On    appeal,         counsel     has       filed    a   brief
    pursuant to Anders v. California, 
    386 U.S. 738
     (1967), alleging
    that    the    district       court      erred      by    failing     to     articulate         its
    reasons    for       denying    Gonzalez-Chavez’s            request        for     a    downward
    variance       and    questioning        the   reasonableness          of        the    sentence.
    Counsel       also    questions       whether       the     district        court       erred    in
    applying a two-level sentencing enhancement for possession of a
    firearm.        In Gonzalez-Chavez’s pro se supplemental brief, he
    joins     counsel       in   raising      these          arguments.         The        Government
    declined to file a responsive brief.                       Following a careful review
    of the record, we affirm.
    Because Gonzalez-Chavez did not move in the district
    court to withdraw his guilty plea, we review the Rule 11 hearing
    for plain error.             United States v. Martinez, 
    277 F.3d 517
    , 525
    (4th    Cir.    2002).         To   prevail      under      this    standard,           Gonzalez-
    Chavez must establish that an error occurred, was plain, and
    affected his substantial rights.                      United States v. Massenburg,
    
    564 F.3d 337
    , 342-43 (4th Cir. 2009).                        Our review of the record
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    establishes that the district court substantially complied with
    Rule 11’s requirements, ensuring that Gonzalez-Chavez’s plea was
    knowing and voluntary.
    We      review       Gonzalez-Chavez’s              sentence       under     a
    deferential         abuse-of-discretion               standard.        Gall   v.    United
    States,       
    552 U.S. 38
    ,      51     (2007).           This    review      requires
    consideration         of       both        the        procedural      and     substantive
    reasonableness of the sentence.                      Id.; United States v. Lynn, 
    592 F.3d 572
    , 575 (4th Cir. 2010).                        After determining whether the
    district      court    correctly           calculated      the     advisory     Guidelines
    range, we must decide whether the court considered the § 3553(a)
    factors, analyzed the arguments presented by the parties, and
    sufficiently explained the selected sentence.                         Lynn, 
    592 F.3d at 575-76
    ; United States v. Carter, 
    564 F.3d 325
    , 330 (4th Cir.
    2009).
    Once we have determined that the sentence is free of
    procedural error, we consider the substantive reasonableness of
    the     sentence,      “tak[ing]       into          account   the    totality     of    the
    circumstances.”         Gall, 
    552 U.S. at 51
    ; Lynn, 
    592 F.3d at 575
    .
    If the sentence is within the appropriate Guidelines range, we
    apply     a     presumption           on     appeal       that       the    sentence     is
    reasonable.         United States v. Mendoza-Mendoza, 
    597 F.3d 212
    , 217
    (4th Cir. 2010).            Such a presumption is rebutted only if the
    defendant demonstrates “that the sentence is unreasonable when
    3
    measured    against      the      § 3553(a)          factors.”           United     States    v.
    Montes-Pineda,      
    445 F.3d 375
    ,    379       (4th    Cir.    2006)     (internal
    quotation marks omitted).
    Gonzalez-Chavez asserts that the district court erred
    in    applying     the      two-level          enhancement,          pursuant        to    U.S.
    Sentencing Guidelines Manual (“USSG”) § 2D1.1(b)(1) (2011), for
    the   firearm    found      in    Gonzalez-Chavez’s              residence.         Gonzalez-
    Chavez   stipulated        in     his    plea        agreement      that      the   two-level
    enhancement was applicable.                    At the guilty plea hearing, the
    Government       summarized        the       plea         agreement,       including        this
    stipulation,       and      Gonzalez-Chavez                confirmed          its   accuracy.
    Gonzalez-Chavez       did        not    object        to    the    enhancement        in     the
    presentence      report,     nor       did     he    at    any    time    dispute     that    he
    possessed the firearm in connection with the drug conspiracy.
    Accordingly, we conclude that the district court did not err in
    applying the enhancement to which Gonzalez-Chavez stipulated.
    Gonzalez-Chavez             also    argues      that    the       district     court
    erred in failing to grant a downward variance.                             The court fully
    responded to defense counsel’s argument for a below-Guidelines
    sentence,    provided       a     detailed          individualized        assessment,        and
    clearly explained the imposed sentence.                            Because the district
    court    correctly       calculated          and      considered         as    advisory      the
    applicable       Guidelines        range        and        adequately         explained      its
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    sentencing      determination,        we   conclude    that    Gonzalez-Chavez’s
    sentence was procedurally reasonable.
    Finally,    Gonzalez-Chavez        questions      the    substantive
    reasonableness of the sentence.                The district court thoroughly
    evaluated these arguments in denying Gonzalez-Chavez’s request
    for a downward variance.              Furthermore, our review of the record
    leads us to conclude that Gonzalez-Chavez has not overcome the
    presumption      of      reasonableness        applicable      to     his    within-
    Guidelines sentence.          Accordingly, we conclude that the district
    court   did    not    abuse     its    discretion     in   sentencing       Gonzalez-
    Chavez.
    In accordance with Anders, we have reviewed the entire
    record in this case and have found no meritorious issues for
    appeal.       We therefore affirm Gonzalez-Chavez’s conviction and
    sentence.       This court requires that counsel inform Gonzalez-
    Chavez, in writing, of the right to petition the Supreme Court
    of the United States for further review.                      If Gonzalez-Chavez
    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 Gonzalez-
    Chavez.
    We dispense with oral argument because the facts and
    legal   contentions       are    adequately     presented     in    the     materials
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    before   this   court   and   argument   would   not   aid   the   decisional
    process.
    AFFIRMED
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