US v. Rogelio Penafiel

Filing 920090224

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4455 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ROGELIO GARCIA PENAFIEL, Defendant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 Affirmed by unpublished per curiam opinion.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 PAYNE & MEECE, PA, Durham, North Terry Michael Meinecke, Assistant Greensboro, North Carolina, for Unpublished opinions are not binding precedent in this circuit.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 3

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