US v. San Miguel

Filing 920070522

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-4839 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JESUS SAN MIGUEL, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Richard L. Voorhees, District Judge. (3:04-cr-00255-3) Submitted: April 30, 2007 Decided: May 22, 2007 Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Eugene J. Chandler, II, Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Charlotte, North Carolina, Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jesus San Miguel pled guilty pursuant to a plea agreement to conspiracy with intent to distribute marijuana, in violation of 21 U.S.C. 841 (2000). San Miguel was sentenced to seventy months' imprisonment, the bottom of the sentencing guidelines range, and he appealed. Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting there are no meritorious issues for appeal but suggesting the district guidelines court as erroneously advisory. failed to treat not the file sentencing a pro se San Miguel did supplemental brief, despite being notified of his right to do so. The Government declined to file a responding brief. reversible error, we affirm. After the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), a sentencing court is no longer bound by the range prescribed by the sentencing guidelines. States v. Hughes, 401 F.3d 540, 546 (4th Cir. See United 2005). In Finding no determining a sentence post-Booker, sentencing courts are required to calculate and consider the applicable guideline range as well as the factors set forth in 18 U.S.C.A. 3553(a) (West 2000 & Supp. 2006). United States v. Moreland, 437 F.3d 424, 432 (4th Cir.), We will affirm a post-Booker cert. denied, 126 S. Ct. 2054 (2006). sentence if it "is within the statutorily prescribed range and is reasonable." Id. at 433 (internal quotation marks and citation - 2 - omitted). "[A] sentence within the proper advisory Guidelines United States v. Johnson, 445 range is presumptively reasonable." F.3d 339, 341 (4th Cir. 2006). San Miguel's sentence was within the sentencing guidelines range of 70 to 87 months' imprisonment and within the statutory maximum of forty years' imprisonment. The district court appropriately treated the sentencing guidelines as advisory, properly calculated the sentencing guidelines range, and considered the relevant 3553(a) factors. reasonable. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. therefore affirm San Miguel's conviction and sentence. We Therefore, we find the sentence This court requires that counsel inform San Miguel, in writing, of the right to petition the Supreme Court of the United States for further review. If San Miguel 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 San Miguel. - 3 - 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 - 4 -

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