US v. Rogelio Penafiel

Filing 920090224

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4455

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. ROGELIO GARCIA PENAFIEL, Defendant ­ Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., District Judge. (1:07-cr-00227-NCT-3)

Submitted:

January 9, 2009

Decided:

February 24, 2009

Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

C. Scott Holmes, BROCK, Carolina, for Appellant. United States Attorney, Appellee.

PAYNE & MEECE, PA, Durham, North Terry Michael Meinecke, Assistant Greensboro, North Carolina, for

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Rogelio Garcia Penafiel appeals his conviction and the district months in court's prison judgment and four imposing years of a sentence supervised of sixty-five after

release

pleading guilty to conspiracy to distribute five hundred grams or more of cocaine hydrochloride, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(B) (2006).

On appeal, Penafiel's attorney

has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting, in his opinion, there are no meritorious

grounds for appeal but raising the issue of whether the district court erred by imposing an unreasonable sentence. Penafiel was

notified of his right to file a pro se supplemental brief, but he has not done so. Finding no error, we affirm.

We review Penafiel's sentence for abuse of discretion. See Gall v. United States, 128 S. Ct. 586, 590 (2007). first step in this review requires us to ensure that The the

district court committed no significant procedural error, such as improperly calculating the guideline range. v. Osborne, 128 S. Ct. 514 2525 F.3d 377, We 387 (4th Cir.), United States cert. the denied,

(2008).

then

consider

substantive

reasonableness of the sentence imposed, taking into account the totality of the circumstances. reviewing a sentence on Gall, 128 S. Ct. at 597. we presume that a When

appeal,

sentence

2

within

a

properly

calculated

guideline

range

is

reasonable.

United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). We have reviewed the record and conclude that the

district court did not err or abuse its discretion in sentencing Penafiel, and his sentence is procedurally and substantively

reasonable.

The district court correctly found his guideline

range was sixty to seventy-one months and reasonably concluded a sentence in the middle of the range was appropriate in his case. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm the district court's judgment.

This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. filed, but counsel If the client requests that a petition be 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 the client. 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

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