US v. Maurilio Prieto-Rubi
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MAURILIO PRIETO-RUBI, Maurilio Prieto-Rubio, Defendant - Appellant.
Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, District Judge. (3:06-cr-00017-nkm-1)
September 29, 2008
January 15, 2009
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marc Seguinót, SEGUINÓT & ASSOCIATES, PC, McLean, Virginia, for Appellant. Julia C. Dudley, Acting United States Attorney, Jean B. Hudson, Assistant United States Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: Maurilio Prieto-Rubi appeals his conviction and 194-month sentence for conspiring to distribute fifty grams or more of methamphetamine, in violation of 21 U.S.C. § 846 (2000).
Prieto-Rubi contends the court erred in accepting his guilty plea without first ascertaining whether he had been advised of his right to contact the Mexican consulate under Article 36 of the Vienna Convention on Consular Relations. He also contends the district
court erred in refusing to consider his status as a deportable alien as a basis for varying from the Sentencing Guidelines range. We affirm. Prieto-Rubi asks this court to vacate his guilty plea and remand for an "evidentiary hearing to determine whether the failure of [notification] under Article 36" violated his rights. Because
Prieto-Rubi did not raise this issue below, his claim is reviewed for plain error. See Fed. R. Crim. P. 52(b). Prieto-Rubi must
show: (1) there was error; (2) the error was plain; and (3) the error affected his substantial rights. United States v. Olano, 507 U.S. 725, 732-34 (1993). Even if all three of these elements are
present, we may not correct the error unless it "seriously affects the fairness, integrity or public reputation of judicial
Id. at 736 (internal quotation marks, alterations
and citation omitted).
Article 36(b) of the Vienna Convention provides that upon arrest, a foreign national has the right to contact the consular post of his home country, and that the arresting authorities must inform the detainee of that right. In Sanchez-Llamas v. Oregon,
548 U.S. 331, 343, 350 (2006), the Supreme Court held that, assuming the Vienna Convention creates enforceable individual
rights, suppression of incriminating evidence via the exclusionary rule is not an appropriate remedy for its violation. Just as
violation of Article 36 does not warrant exclusion of incriminating evidence, it does not require vacating Prieto-Rubi's conviction. See Medellin v. Texas, 128 S. Ct. 1346, 1360-61 (holding treaties without self-executing provisions do not constitute "directly
enforceable federal law").* Prieto-Rubi also argues that his status as a deportable alien is a permissible grounds for variance and the district court erred in its refusal to consider varying the sentence on this basis. Our review of the record leads us to conclude, however,
Prieto-Rubi also refers to the decision of the International Court of Justice ("ICJ") in the Case Concerning Avena and other Mexican Nationals (Mex. v. U.S.), 2004 I. C. J. 12 (Mar. 31), in which the ICJ held that the United States had violated the Vienna Convention by failing to inform 51 named Mexican nationals of their Vienna Convention rights and that those individuals were entitled to review and reconsideration of their U.S. state-court convictions. The international court's decision in the Avena case does not, however, require reversal of Prieto-Rubi's conviction, because the ICJ's decision is not "directly enforceable federal law." Medellin, 128 S. Ct. at 1353. 3
deportation issue warranted a departure. In any event, Prieto-Rubi cannot establish that his sentence is unreasonable. This court will affirm a sentence so
long as it is within the statutorily prescribed range and is reasonable. Cir. 2005). United States v. Hughes, 401 F.3d 540, 546-47 (4th We review a district court's sentence for
reasonableness under an abuse-of-discretion standard. United States, 128 S. Ct. 586, 597 (2007); see also
Gall v. United When
States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). sentencing a defendant, a district court must: (1)
calculate the Guidelines range; (2) determine whether a sentence within that range serves the factors set out in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008); (3) implement mandatory
statutory limitations; and (4) explain its reasons for selecting a sentence. Pauley, 511 F.3d at 473. "[A] sentence within the
proper advisory Guidelines range is presumptively reasonable." United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006); see Rita v. United States, 127 courts S. Ct. to 2456, 2462, a 2465 (2007) of
reasonableness to a within-Guidelines sentence).
194-month sentence is within the Guidelines range and below the statutory maximum. Neither Prieto-Rubi nor the record suggests any
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.
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