US v. Miguel Silvas

Filing 920100218

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4518

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MIGUEL VARGAS SILVAS, a/k/a Miguel Flores Sanchez, a/k/a Miguel Vargas, a/k/a Miguel Silvas-Vargas, Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., Chief District Judge. (1:07-cr-00251-JAB-1)

Submitted:

December 10, 2009

Decided:

February 18, 2010

Before WILKINSON and Senior Circuit Judge.

GREGORY,

Circuit

Judges,

and

HAMILTON,

Affirmed by unpublished per curiam opinion.

Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North Carolina, for Appellant. Angela Hewlett Miller, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Miguel Vargas Silvas appeals the district court's

judgment entered pursuant to his guilty plea to unauthorized reentry of a removed alien previously convicted of an aggravated felony (2006). offense, in violation of 8 U.S.C. § 1326(a), (b)(2)

Counsel for Silvas filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), in which she asserts there are no meritorious issues for appeal, but asks this court to review the adequacy of the plea hearing and the reasonableness of

Silvas' sentence.

Silvas was notified of the opportunity to

file a pro se supplemental brief, but has failed to do so. Finding no error, we affirm. Under Fed. R. Crim. P. 11(b)(1), the district court must address the defendant in open court and inform him of the following: the nature of the charge; any mandatory minimum

sentence and the maximum possible sentence; the applicability of the Sentencing Guidelines; the court's obligation to impose a special assessment; the defendant's right to an attorney; his right to plead not guilty and be tried by a jury with the

assistance of counsel; his right to confront and cross-examine witnesses; his right against self-incrimination; and his right to testify, present evidence, and compel the attendance of

witnesses.

The defendant also must be told that a guilty plea

waives any further trial and that his answers at the proceeding 2

may be used against him in a prosecution for perjury.

Under

Rule 11(b)(2), the court must address the defendant to determine that the plea is voluntary. The court must determine a factual

basis for the plea under Rule 11(b)(3) and require disclosure of any plea agreement under Rule 11(c)(2). Because Silvas did not

move in the district court to withdraw his guilty plea, any challenges to the Rule 11 hearing are reviewed for plain error. See United States v. Martinez, 277 F.3d 517, 524-25 (4th Cir. 2002). During the plea hearing, the district court informed Silvas of the nature of the charges and penalties he faced, found that Silvas was competent and entering his plea

voluntarily, and determined there was a sufficient factual basis for the plea. However, the district court's recitation of the

rights Silvas was forfeiting as a result of his guilty plea was perfunctory and limited. While the district court informed

Silvas that he was giving up his right to a jury trial and "all your Constitutional rights relating to trial by jury," the court failed to specifically by counsel inform at Silvas his of his to right to be and

represented

trial,

right

confront

cross-examine witnesses, his right against self-incrimination, and his right to testify, present evidence, and compel the

attendance of witnesses. Furthermore, Silvas'

See Fed. R. Crim. P. 11(b)(1)(D)-(E). to 3 the district court's inquiry

answer

regarding his forfeited rights was somewhat disconcerting, as he replied, guilty." "I'm not giving up anything, I just want to plea

When the district court subsequently asked whether he

was requesting a jury trial, Silvas merely replied, "[n]o, what for?" Despite the district court's failure to fully inform Silvas of the rights he was waiving by entering his guilty plea, there is no evidence in the record that, absent the Rule 11 errors, Silvas "would not have entered into his plea agreement with the Government." Martinez, 277 F.3d at 532. The numerous

trial rights that Silvas relinquished were detailed in his plea agreement, and there is no indication in the record that Silvas desired to contest any error his by guilt the on the charged did offense. affect the

Accordingly, Silvas'

district We

court

not

substantial

rights.

therefore

conclude

that

record establishes that Silvas knowingly and voluntarily entered into his guilty plea with an adequate understanding of the

consequences. Silvas reasonableness of also his asks this We court review to a review sentence the for

sentence.

reasonableness under an abuse of discretion standard. United States, 552 U.S. 38, 51 (2007).

Gall v.

This review requires

appellate consideration of both the procedural and substantive reasonableness of a sentence. 4 Id. In determining whether a

sentence assess

is

procedurally the

reasonable, court

this

court

must

first the This

whether

district

properly

calculated

defendant's advisory guidelines range.

Id. at 596-97.

court then must consider whether the district court considered the factors in 18 U.S.C. § 3553(a) (2006), analyzed the

arguments presented by the parties, and made "an individualized assessment based on the facts presented." Gall, 128 S. Ct. at

597; United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). Finally, sentence. 2007). Our review of the record leads us to conclude that the district court committed no procedural error in this case. we review the substantive reasonableness of the

United States v. Pauley, 511 F.3d 468, 473 (4th Cir.

Turning to the substantive reasonableness of the sentence, we presume that a sentence imposed within the properly calculated guidelines range is reasonable. Rita v. United States, 551 U.S.

338, 347 (2007); United States v. Smith, 566 F.3d 410, 414 (4th Cir. 2009). Applying the presumption of reasonableness to

Silvas' within-guidelines sentence, which Silvas fails to rebut on appeal, we find that the district court did not abuse its discretion in imposing the chosen sentence. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the district court's judgment. 5 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 such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. was served on Counsel's motion must state that a copy thereof the client. We dispense 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

6