US v. Javier Chay-De La Cruz

Filing 920100618

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4515

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAVIER CHAY-DE LA CRUZ, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:07-cr-00102-RJC-1)

Submitted:

May 26, 2010

Decided:

June 18, 2010

Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael N. Loebl, FULCHER HAGLER LLP, Augusta, Georgia, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina; Kenneth Michel Smith, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Javier Chay-De La Cruz pled guilty, without a plea agreement, to illegal reentry of a deported alien after a

conviction of an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2) (2006). to fifty-seven months in The court sentenced Chay-De La Cruz prison. Chay-De La Cruz appealed.

Defense counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), finding no meritorious grounds for appeal but challenging the adequacy of the Fed. R. Crim. P. 11 hearing and questioning the reasonableness of Chay-De La Cruz's

sentence.

Chay-De La Cruz filed a pro se supplemental brief

asserting claims of ineffective assistance of trial counsel. 1 Because Chay-De La Cruz did not move in the district court to withdraw his guilty plea, any error in the Rule 11 hearing is reviewed for plain error. United States v. Martinez, Our

277 F.3d 517, 525 (4th Cir. 2002) (discussing standard). careful review of the record convinces us that the

district

court substantially complied with the mandates of Rule 11 in accepting Chay-De La Cruz's guilty plea and ensured that he

entered his plea knowingly and voluntarily and that the plea was

Chay-De La Cruz was represented by different counsel in the district court.

1

2

supported by an independent factual basis. 2

See United States v.

DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). Turning to Chay-De La Cruz's sentence, we review his sentence standard. for reasonableness under an abuse-of-discretion This

Gall v. United States, 552 U.S. 38, 51 (2007).

review requires appellate consideration of both the procedural and substantive reasonableness of the sentence. assess whether the district court the 18 properly U.S.C. § Id. We must the

calculated 3553(a)

guidelines

range,

considered

(2006)

factors, analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. Id. at 49-50; see

United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) ("[A]n individualized explanation must accompany every sentence."); An

United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009).

extensive explanation is not required as long as the appellate court is satisfied "`that [the district court] has considered the parties' arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.'" United States v.

Engle, 592 F.3d 495, 500 (4th Cir. 2010) (quoting Rita v. United States,
2

551

U.S.

338,

356

(2007)).

Finally,

we

review

the

As counsel acknowledges, Chay-De La Cruz consented to proceed before a magistrate judge for the plea hearing, and the magistrate judge was properly authorized to conduct the Rule 11 hearing. United States v. Osborne, 345 F.3d 281, 288 (4th Cir. 2003).

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substantive totality of

reasonableness the

of

the to

sentence, see

"examin[ing] the

the

circumstances

whether

sentencing

court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a)." United

States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). Defense guidelines range, counsel questions the the calculation of the in

specifically

sixteen-level

increase

offense level imposed under U.S. Sentencing Guidelines Manual § 2L1.1(b)(1)(A) (2007), based on Chay-De La Cruz's prior felony conviction for transporting aliens for the purpose of commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) (2006). sixteen-level enhancement Section 2L1.1(b)(1)(A) calls for a "[i]f the defendant previously was

deported . . . after . . . a conviction for a felony that is . . . an alien smuggling offense." USSG § 2L1.1(b)(1)(A). The

commentary to this section defines an "alien smuggling offense" the same way it is defined in 8 U.S.C. § 1101(a)(43)(N) (2006). That provision specifically references 8 U.S.C. § 1324(a)(1)(A), the statute under which Chay-De La Cruz was previously

convicted.

We find no error in the application of the sixteen-

level enhancement. Our review of the record leads us to conclude that the district court properly calculated Chay-De La Cruz's guidelines range, considered the § 3553 4 factors, considered counsel's

arguments

and

Chay-De

La

Cruz's

allocution,

and

adequately

explained the reasons for the sentence imposed.

We therefore Moreover, of

find that the sentence was procedurally reasonable. nothing in the record overcomes La the Cruz's

presumption

reasonableness sentence. 2010);

afforded

Chay-De

within-guidelines

United States v. Wright, 594 F.3d 259, 267 (4th Cir. v. United States, 551 U.S. 338, 347 (2007)

Rita

(upholding rebuttable presumption of reasonableness for withinguidelines sentence). In accordance with Anders, we have reviewed the record for any we meritorious affirm that the issues for appeal court's and have found This none. 3 court of his

Thus,

district inform

judgment. in

requires

counsel

his

client,

writing,

right to petition the Supreme Court of the United States for further filed, review. but If the client requests such for a that a petition would be be

counsel then

believes may

that move

petition to

frivolous,

counsel

leave

withdraw

from

representation. Counsel's motion must state that a copy thereof was served
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on

the

client.

We

dispense

with

oral

argument

We have reviewed the claims in Chay-De La Cruz's pro se supplemental brief. Because it does not conclusively appear from the record that Chay-De La Cruz was denied effective assistance of counsel, we conclude that his claims are not cognizable on direct appeal. United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999); United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).

5

because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED

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