US v. Peribian-Gonzalez

Filing 920091124

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4460 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CUAUTEMOC PERIBIAN-GONZALEZ, a/k/a Juan, a/k/a Gordo, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Beaufort. Sol Blatt, Jr., Senior District Judge. (9:06-cr-00158-SB) Submitted: November 9, 2009 Decided: November 24, 2009 Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. J. Christopher Mills, J. CHRISTOPHER MILLS, LLC, Columbia, South Carolina, for Appellant. Carlton R. Bourne, Jr., Eric John Klumb, Reginald I. Lloyd, Assistant United States Attorneys, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Cuautemoc Peribian-Gonzalez pled guilty, pursuant to a written plea agreement, to one count of conspiracy to possess with intent to distribute and to distribute over 500 grams of cocaine, in violation of 21 U.S.C. 841(a)(1), (b)(1)(A), 846 (2006). The district court ultimately sentenced Peribian- Gonzalez to 400 months imprisonment. On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal, but raising the following potential claims: whether the district court complied with Fed. R. Crim. P. 11 in accepting PeribianGonzalez's guilty plea, whether the district court erred in denying his motion to suppress certain evidence, and whether the sentence is reasonable. pro se brief Peribian-Gonzalez in which he also has filed a the supplemental challenges validity of his guilty plea and claims that the district court violated the holding in United States v. Booker, 543 U.S. 220 (2005), by making drug quantity findings that were not set forth in the indictment and proved beyond a reasonable doubt. Our review of the record reveals that the district court fully complied with the requirements of Fed. R. Crim. P. 11 in accepting Peribian-Gonzalez's guilty plea. The court informed Peribian-Gonzalez, through an interpreter, of his right to plead not guilty and have his case tried by a jury. 2 The district court also reviewed the constitutional rights PeribianGonzalez district nature of was forfeiting ensured charge by that to entering his guilty plea. The the the court the Peribian-Gonzalez he was understood guilty, which pleading minimum and maximum possible penalties, the court's obligation to impose a special assessment, and the advisory sentencing guidelines scheme. The court determined that Peribian-Gonzalez was pleading guilty freely and voluntarily and that a factual basis supported the plea. district court in Accordingly, we find no error by the Peribian-Gonzalez's guilty plea. accepting See United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). Next, erred in counsel questions whether the district to court denying Peribian-Gonzalez's motion suppress. However, counsel concedes that Peribian-Gonzalez did not enter a conditional guilty plea, and, therefore, his valid guilty plea constitutes defects. a waiver of all antecedent non-jurisdictional See Tollett v. Henderson, 411 U.S. 258, 267 (1973). Finally, Peribian-Gonzalez challenges the sentence imposed. the In his supplemental pro se brief, he first claims that court to drug violated quantity the holding in Booker those by making set district as findings without having facts forth in the indictment and proved beyond a reasonable doubt. However, this claim is without 3 merit. See Rita v. United States, 551 U.S. 338, 353 (2007) (recognizing that its "Sixth Amendment cases do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence"); United States v. Brooks, 524 F.3d 549, 561-62 (4th Cir.) ("[A] sentencing court is entitled to find individualized drug quantities by a preponderance of the evidence, as part of its calculation of an advisory sentence Guidelines is within range, the . . . so long as its resulting cert. relevant statutory range."), denied, Witherspoon v. United States, 129 S. Ct. 519 (2008). Counsel also questions the reasonableness of PeribianGonzalez's sentence. We review a sentence for reasonableness Gall v. United States, This review and under an abuse of discretion standard. 552 U.S. 38, requires , 128 S. Ct. 586, 597 (2007). consideration of a of both the appellate procedural Id. substantive reasonableness sentence. After determining whether the district court properly calculated the defendant's advisory guidelines range, we must then consider whether the district court considered the 3553(a) factors, analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. Id. at 596-97; see United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). The record must establish that the district court made "an 4 individualized assessment based on the facts presented." 128 S. Ct. at 597. We find no error by the district court. properly Moreover, calculated the Peribian-Gonzalez's statements at Gall, The court range. guidelines court's Peribian-Gonzalez's sentencing hearing reflect an "individualized assessment" of the facts pertaining to his sentence. We also find the sentence to be substantively reasonable as it is below the statutory maximum of 480 months and below the advisory guideline range of life imprisonment. Peribian-Gonzalez sentence is has not overcome See Rita, the 551 presumption U.S. at that the reasonable. 347; United States v. Smith, 566 F.3d 410, 414 (4th Cir. 2009). In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. court. Accordingly, we affirm the judgment of the district We require 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 filing 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 the client. 5 We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional would process. AFFIRMED 6

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