US v. Jose Galvan

Filing 920100513

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4035 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSE LUIS GALVAN, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry F. Floyd, District Judge. (7:05-cr-01277-HFF-2) Submitted: April 8, 2010 Decided: May 13, 2010 Before TRAXLER, Judges. Chief Judge, and GREGORY and SHEDD, Circuit Affirmed by unpublished per curiam opinion. Jessica Salvini, SALVINI Carolina, for Appellant. United States Attorney, Appellee. & BENNETT, LLC, Greenville, South Elizabeth Jean Howard, Assistant Greenville, South Carolina, for Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jose Luis Galvan pled guilty, without the benefit of a written plea agreement, to conspiracy to possess with intent to distribute fifty grams or more of methamphetamine and 500 grams or more of a substance containing a detectable amount of The methamphetamine, in violation of 21 U.S.C. 846 (2006). district court sentenced him to 108 months of imprisonment, the top of the advisory guidelines range. On appeal, Galvan's counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), issues stating for that, in but her view, there the are no meritorious appeal challenging district court's determination of the base offense level and questioning whether trial counsel provided ineffective assistance. has filed a pro se supplemental to consider brief, asserting the Galvan the that district court failed adequately statutory sentencing factors and explain sufficiently the chosen sentence. Finding no reversible error, we affirm. Counsel questions whether the district court properly established the base offense level of thirty-four. se brief, Galvan contends that the district In his pro did not court consider adequately the factors set forth in 18 U.S.C. 3553(a) (2006), or explain the chosen sentence. for reasonableness under an We review a sentence standard. This review abuse-of-discretion Gall v. United States, 552 U.S. 38, 51 (2007). 2 requires appellate consideration of both the Id. procedural and substantive reasonableness of a sentence. We must assess whether the district court properly calculated the guidelines range, considered the 3553(a) factors, analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. F.3d 572, 576 Id. at 49-50; see United States v. Lynn, 592 Cir. 2010). of the to Finally, sentence, see we review the the (4th substantive totality of reasonableness the "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). Because Galvan did not object to the base offense level established at sentencing, our review is for plain error. Lynn, 592 F.3d at 576-77. "To establish plain error, [Galvan] must show that an error (1) was made, (2) is plain (i.e., clear or obvious), and (3) affects substantial rights." If Galvan establishes discretion these to requirements, correct the this error Id. at 577. court only if "may it exercise its seriously affects the fairness, integrity or public reputation of judicial proceedings." citation omitted). At his plea hearing, Galvan admitted responsibility Id. (internal quotation marks and for 398.3 grams of methamphetamine, and, based on that amount, 3 the district court properly established a base offense level of thirty-four. See U.S. Sentencing Guidelines Manual 2D1.1(c)(3) (2005) (applicable to offenses involving at least 150, but less than 500, grams of actual methamphetamine). Thus, there is no error, plain or otherwise, in the district court's establishment of the base offense level. Next, Galvan asserts that the district court did not consider adequately the 3553(a) factors or explain sufficiently the reasons for sentencing him at the top of the guidelines range after he had received a safety-valve reduction under USSG 5C1.2. Because Galvan did not object on these grounds in the district court, we review his claims for plain error. Lynn, 592 F.3d at 579-80. Even assuming that the district court committed plain error in Galvan's case, Galvan has not demonstrated on appeal that the error "had a prejudicial effect on the sentence imposed." Id. at 580. To the extent Galvan also challenges the substantive reasonableness of his sentence, this court "may presume that a sentence within the properly calculated Guidelines range is reasonable." 2009). properly United States v. Raby, 575 F.3d 376, 381 (4th Cir. the 108-month guidelines sentence range is the well top of the the Because calculated and within statutory maximum term of life imprisonment, see 21 U.S.C.A. 841(b)(1)(A)(viii) (West Supp. 4 2009), and Galvan has not rebutted the presumption of reasonableness, we conclude that the sentence imposed by the district court is reasonable. Finally, appellate counsel suggests that trial counsel provided ineffective assistance. This court "may address [claims of ineffective assistance] on direct appeal only if the lawyer's ineffectiveness conclusively appears from the record." United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). Because Galvan's claim does not meet this high standard, we decline to review this claim on direct appeal. In accordance with Anders, we have reviewed the record for any meritorious issues and have found none. affirm the district court's judgment. We therefore This court requires that counsel inform her client, in writing, of the right to petition the Supreme Court of the United States for further review. the client requests that a petition be filed, but If counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. was served on the Counsel's motion must state that a copy thereof the client. and We legal dispense with oral are argument because facts contentions adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5

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