US v. Vicente Ramirez

Filing 920090309

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4393

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. VICENTE RAMIREZ, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:06-cr-01138-TLW-1)

Submitted:

February 13, 2009

Decided:

March 9, 2009

Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed and remanded by unpublished per curiam opinion.

Kathy Price Elmore, ORR, ELMORE & ERVIN, LLC, Florence, South Carolina, for Appellant. Arthur Bradley Parham, Assistant United States Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Pursuant to a plea agreement, Vicente Ramirez pled

guilty to possession with intent to distribute a quantity of marijuana, (2006). pronounced Ramirez's in At a violation the of 21 U.S.C. hearing, § 841(a)(1), the (b)(1)(D) court prison. v.

sentencing of filed 738

district in to in

sentence has

ninety-three a brief

months

counsel 386

pursuant that,

Anders her

California,

U.S.

(1967),

stating

view,

there are no meritorious grounds for appeal.

Counsel questions

whether the district court complied with Rule 11 of the Federal Rules of Criminal Procedure in accepting Ramirez's guilty plea, whether the sentence imposed was reasonable, and whether the district court abused its discretion in declining to make a

downward variance from the advisory sentencing guidelines range. Ramirez was advised of his right to file a pro se supplemental brief, but he did not file one. and the oral the sentence to imposed We affirm Ramirez's conviction at the sentencing with hearing but to

remand

case

the

district

court

instructions

correct the written judgment to conform to the oral sentence. Counsel raises as a potential issue the adequacy of the plea hearing but concludes that there were no deficiencies in the district court's Rule 11 inquiries. Our careful review

of the record convinces us that the district court substantially complied with the mandates of Rule 11 in accepting Ramirez's 2

guilty plea and ensured that Ramirez entered his plea knowingly and voluntarily and that the plea was supported by an

independent factual basis.

United States v. DeFusco, 949 F.2d

114, 116, 119-20 (4th Cir. 1991). Counsel next questions the reasonableness of the

sentence and whether the district court abused its discretion by denying Ramirez's motion for a downward variance sentence. We

review the sentence imposed by the district court for an abuse of discretion. (2007). district sentencing and Gall v. United States, 128 S. Ct. 586, 597

Our review of the record leads us to conclude that the court followed the necessary calculating in procedural the steps in

Ramirez,

properly

guidelines

range the

considering

that

recommendation

conjunction

with

factors set forth in 18 U.S.C. § 3553(a) (2006). S. Ct. at 597. We also find that the

See Gall, 128 district court

meaningfully articulated its refusal to vary from the guidelines range and its decision to sentence Ramirez within the advisory guidelines range. See id.; Rita v. United States, 551 U.S. 338,

___, 127 S. Ct. 2456, 2462-69 (2007) (upholding presumption of reasonableness for within-guidelines sentence). Thus, we

conclude that the sentence is reasonable. We have reviewed the record in accordance with Anders and affirm Ramirez's at conviction the and the ninety-three-month We note,

sentence

pronounced

sentencing 3

hearing.

however, that the written judgment reflects a sentence of ninety months' imprisonment. Where a conflict exists between an orally

pronounced sentence and the written judgment, the oral sentence controls. Fed. R. Crim. P. 35(c) ("`[S]entencing' means the

oral announcement of the sentence."); United States v. Osborne, 345 F.3d 281, 283 n.1 (4th Cir. 2003); United States v. Morse, 344 F.2d 27, 30-31 (4th Cir. 1965). the district court with Thus, we remand the case to to correct the written

instructions

judgment to conform to the sentence announced at the sentencing hearing. This court requires that counsel inform her 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 a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel's motion must We dispense

state that a copy thereof was served on the client.

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 AND REMANDED

4