US v. Jose Aguilar-Rivera

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:03-cr-00004-RLV-CH-9 Copies to all parties and the district court/agency. [998404926] [08-5260]

US v. Jose Aguilar-Rivera

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Date Filed: 08/17/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5260 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSE LUIS AGUILAR-RIVERA, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:03-cr-00004-RLV-CH-9) Submitted: July 23, 2010 AGEE, Circuit Decided: Judges, and August 17, 2010 HAMILTON, Senior

Before MOTZ and Circuit Judge.

Affirmed by unpublished per curiam opinion. James E. Quander, Jr., QUANDER & RUBAIN, P.A., Winston-Salem, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Pursuant to a plea agreement, Jose Luis Aguilar-Rivera pled guilty to conspiracy to possess with intent to distribute quantities U.S.C. of cocaine (2006). and The cocaine district base, court in violation of 21

§ 846

sentenced

Aguilar-

Rivera to 127 months' imprisonment, a term within the advisory guidelines range. Counsel Aguilar-Rivera timely appealed. has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), finding no meritorious grounds for appeal but questioning whether the district court erred by imposing a two-level firearm enhancement under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2008). pro se supplemental brief challenging Aguilar-Rivera filed a his guilty plea and

asserting claims of ineffective assistance of appellate counsel. Turning first to Aguilar-Rivera's pro se challenge to his guilty plea, he contends that his plea was not knowing and voluntary because he waived numerous rights without any

concessions by the Government.

Because he did not move in the

district court to withdraw his guilty plea, any error in the Fed. R. Crim. P. 11 hearing is reviewed for plain error. United An

States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). appropriately conducted Rule 11 proceeding creates "a

strong

presumption that the plea is final and binding." v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992). 2

United States Our review of

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the record convinces us that the district court substantially complied with the requirements of Rule 11 in accepting AguilarRivera's guilty plea. Moreover, contrary to his claim that he

received no concessions for his plea, in exchange for the plea, the Government successfully moved for the dismissal of two other charges pending against Aguilar-Rivera. granted him of a three-level responsibility. reduction We hold Furthermore, the court in offense level for

acceptance

that

Aguilar-Rivera's

claim that his guilty plea was not knowing and voluntary is meritless. Defense Aguilar-Rivera's counsel sentence, questions specifically the the reasonableness two-level of

firearm

enhancement under USSG § 2D1.1(b)(1), but ultimately concludes that the sentence is reasonable. sentence standard. review for reasonableness An appellate court reviews a under an abuse-of-discretion This and

Gall v. United States, 552 U.S. 38, 51 (2007). consideration of both the Id. procedural

requires

substantive reasonableness of a sentence.

First, the court

must assess whether the district court properly calculated the guidelines range, considered the 18 U.S.C. § 3553(a) (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 3 accompany every sentence.");

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

An

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, 551 U.S. 338, 356 (2007)), petition for cert. filed, 78 U.S.L.W. 3764 (U.S. 2010) (No. 09-1512). is procedurally reasonable, of the the to court Even if the sentence must consider the the

substantive totality of

reasonableness the

sentence, see

"examin[ing] 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). Under increase defendant a USSG § 2D1.1(b)(1), offense firearm level during a by a district two drug court if must the USSG

defendant's a

levels offense.

possessed

§ 2D1.1(b)(1).

The enhancement is proper when "the weapon was

possessed in connection with drug activity that was part of the same course of conduct or common scheme as the offense of

conviction."

United States v. Manigan, 592 F.3d 621, 628-29

(4th Cir. 2010) (internal quotation marks omitted). Whether enhancement under the USSG district § court properly is applied for the clear

2D1.1(b)(1) 4

reviewed

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error. 2001).

United States v. McAllister, 272 F.3d 228, 234 (4th Cir. Under a clear error standard of review, this court will

reverse only if "left with the definite and firm conviction that a mistake has been committed." F.3d 326, 336-37 (4th Cir. United States v. Harvey, 532 (internal quotation marks

2008)

omitted). Aguilar-Rivera improperly applied the contends enhancement that the district only court

because

the

evidence

supporting it was hearsay evidence from a single officer who recounted evidence and testimony from a co-conspirator's trial that Aguilar-Rivera shot and wounded two co-conspirators during the course of the conspiracy. However, it is well-established

that "there is no bar to the use of hearsay at sentencing . . . [and a] trial court may properly consider uncorroborated hearsay evidence that the defendant has had an opportunity to rebut or explain." n.4, 2010 United States v. Alvarado Perez, ___ F.3d ___, ___ WL 2612677, at *12 and n.4 (4th Cir. July 1, We 2010) have

(internal

quotation

marks

citation

omitted).

reviewed the record with these standards in mind and conclude that the district court did not clearly err by finding that a preponderance of the evidence supported the firearm enhancement under USSG § 2D1.1(b)(1). The Rivera's district court in properly all 5 other calculated respects. AguilarWe note,

guidelines

range

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however,

that

the

district

court

did

not

make

an

adequate

individualized assessment as required by Carter, 564 F.3d at 330. sentence The district court than provided to no explanation that it was for the

imposed

other

state

imposing

sentence "[p]ursuant to the Sentencing Reform Act of 1984" and United States v. Booker, 543 U.S. 220 (2005). Nonetheless,

because the district court sentenced Aguilar-Rivera within the advisory guidelines range, this unpreserved error did not affect his substantial rights. 514, 518 (4th Cir. See United States v. Angle, 254 F.3d (stating that, in the sentencing

2001)

context, an error affects substantial rights if the sentence imposed "was longer than that to which he would otherwise be subject"); see also Lynn, 592 F.3d at 580 (finding that

defendant's substantial rights were not affected because he was sentenced at the low end of the applicable guidelines range and counsel did not argue for a sentence outside that range). Having determined that there is no reversible

procedural error, the court must also consider the substantive reasonableness of the sentence, taking into account the totality of the circumstances. Gall, 552 U.S. at 51. Because Aguilar-

Rivera's sentence is within the appropriate guidelines range, we presume on appeal that it is reasonable. 517 F.3d 216, 218 (4th Cir. 2008). United States v. Go,

The presumption may be

rebutted by a showing "that the sentence is unreasonable when 6

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measured

against

the

§

3553(a) 375,

factors." (4th Cir.

United 2006)

States

v.

Montes-Pineda,

445

F.3d

379

(internal

quotation marks omitted). presumption. committed no Accordingly, significant

Aguilar-Rivera has not rebutted that we hold that or the district court in

procedural

substantive

error

sentencing Aguilar-Rivera. Finally, in his pro se supplemental brief, AguilarRivera claims he received ineffective assistance of appellate counsel. Claims of ineffective assistance of counsel are

generally not cognizable on direct appeal. King, 119 F.3d 290, 295 (4th Cir. 1997).

See United States v. Rather, to allow for

adequate development of the record, a defendant must bring such claims in a 28 U.S.C.A. § 2255 (West Supp. 2010) motion, unless the record conclusively establishes ineffective assistance.

United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999); King, 119 F.3d at 295. Because the record does not conclusively

show that Aguilar-Rivera's counsel was ineffective, we decline to consider Aguilar-Rivera's claims on direct appeal. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Aguilar-Rivera's for an conviction of and sentence. to file a

Aguilar-Rivera's

motion

extension

time

second pro se supplemental brief is denied.

This court requires

that counsel inform Aguilar-Rivera, in writing, of the right to 7

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petition review.

the

Supreme

Court

of

the

United

States

for

further

If Aguilar-Rivera requests that a petition be filed,

but counsel 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 We dispense with oral argument

was served on Aguilar-Rivera.

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

8