US v. Jose Galvan

Filing 920100513

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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