US v. Benjamin Alvarez-Hernandez

Filing 920081126


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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4412 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BENJAMIN ALVAREZ-HERNANDEZ, a/k/a Benjamin Martinez, a/k/a Benjamin Escamilla Mendosa, Defendant - Appellant. Hernandez- Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:07-cr-00646-RBH-1) Submitted: November 20, 2008 Decided: November 26, 2008 Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Michael A. Meetze, Assistant Federal Public Defender, 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 Unpublished opinions are not binding precedent in this circuit.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: Benjamin Alvarez-Hernandez appeals from his conviction and 75-month sentence imposed following his guilty plea to unlawful reentry into the United States by an aggravated felon. Hernandez's attorney filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), addressing the validity of the plea and the reasonableness of the sentence, but stating that there was no merit to the appeal. Hernandez was informed of his Our right to file a pro se brief, but has declined to do so. review of the record discloses no reversible error; accordingly, we affirm Hernandez's conviction and sentence. We find that Hernandez's guilty plea was knowingly and voluntarily entered after a thorough hearing pursuant to Fed. R. Crim. P. 11. Hernandez was properly advised of his rights, the The offense charged, and the maximum sentence for the offense. court basis also for determined the plea that and there the was an independent was not factual or that plea coerced influenced by any promises. See United States v. DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991). Appellate courts review sentences imposed by district courts for reasonableness, applying an abuse of discretion standard. Gall v. United States, 128 S. Ct. 586, 597 (2007); see also United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). When sentencing a defendant, 2 a district court must: (1) properly calculate the guideline range; (2) treat the guidelines as advisory; (3) consider the factors set out in 18 U.S.C.A. 3553(a) (West 2000 & Supp. 2008); and (4) explain its reasons for selecting a sentence. presume that a sentence Pauley, 511 F.3d at 473. the properly We within calculated sentencing guidelines range is reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see also Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007) (upholding application of rebuttable presumption of correctness of within guideline sentence). steps in sentencing The district court followed the necessary Hernandez, and we find no abuse of We discretion in the sentence of 75 months of imprisonment. therefore affirm his conviction and sentence. As required by Anders, we have reviewed the entire record and have found no meritorious issues for appeal. This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further filed, review. but If the client requests such his a that a petition would leave be be to counsel then believes may that renew petition for frivolous, counsel motion withdraw from representation. Counsel's motion must state that We dispense with oral a copy thereof was served on the client. argument because the facts and legal contentions are adequately 3 presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4

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