US v. Giovanni Viruel


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:08-cr-00590-CMC-10 Copies to all parties and the district court/agency. [998476777] [09-4399]

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US v. Giovanni Viruel Doc. 0 Case: 09-4399 Document: 77 Date Filed: 12/02/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4399 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GIOVANNI VIRUEL, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, District Judge. (3:08-cr-00590-CMC-10) Submitted: October 14, 2010 Decided: December 2, 2010 Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Jonathan Harvey, Columbia, South Carolina, for Appellant. James Chris Leventis, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Mark C. Moore, Stanley Duane Ragsdale, Assistant United States Attorneys, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Case: 09-4399 Document: 77 Date Filed: 12/02/2010 Page: 2 PER CURIAM: Giovanni Viruel appeals the forty-eight month sentence imposed following his conviction for use of a telecommunication facility in a drug trafficking crime, in violation of 21 U.S.C. 843(b) (2006), and illegal reentry, in violation of 8 U.S.C. 1326(a) (2006). Viruel's attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), contending there are no meritorious issues on appeal, but questioning whether the district court erred in failing to apply a two-level reduction pursuant to U.S. Sentencing Guidelines Manual (USSG) 2D1.1(b)(11) (2008). * pro se supplemental Though informed of his right to file a Viruel has not done so, and the brief, Government has elected not to file a brief. We affirm. "Regardless of whether the sentence imposed is inside or outside the the [g]uidelines under range, an the appellate court must review sentence abuse-of-discretion standard." Gall v. United States, 552 U.S. 38, 51 (2007). Appellate courts are charged with reviewing sentences for both procedural and substantive reasonableness. Id. Though counsel cites USSG 2D1.1(b)(7) in his brief, that section involves the application of a two-level enhancement for distribution of an anabolic steroid and masking agent, not at issue in this case. The remainder of counsel's brief makes it clear that counsel intended to cite to USSG 2D1.1(b)(11). 2 * Case: 09-4399 Document: 77 Date Filed: 12/02/2010 Page: 3 In assess determining the procedural court reasonableness, properly we first the whether district calculated defendant's advisory guidelines range. Id. at 49-50. We then determine whether the district court failed to consider the 18 U.S.C. 3553(a) (2006) factors and any arguments presented by the parties, treated the guidelines as mandatory, selected a sentence based on "clearly erroneous facts," or failed to sufficiently explain the selected sentence. Id. at 51; United Finally, sentence, States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). we review the substantive account extent the of reasonableness `totality variance of of the the "taking including range.'" 51). into the circumstances, [g]uidelines any from the Pauley, 511 F.3d at 473 (quoting Gall, 552 U.S. at A district court's factual findings, including those that serve as a basis for a sentencing enhancement, are reviewed for clear error, see United States v. Kiulin, 360 F.3d 456, 460 (4th Cir. 2004); a district court's legal conclusions regarding whether to apply an enhancement are reviewed de novo, see United States v. Layton, 564 F.3d 330, 334 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009). Under USSG 2D1.1(b)(11), if a "defendant meets the criteria set forth in subdivisions (1)-(5) of subsection (a) of 5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in 3 Certain Cases)," his offense Case: 09-4399 Document: 77 Date Filed: 12/02/2010 Page: 4 level burden should of be decreased he by two levels. the Viruel 5C1.2 bears the establishing satisfies criteria. United States v. Thompson, 554 F.3d 450, 455 (4th Cir.), cert denied, 130 S. Ct. 191 (2009). Because Viruel fails to make such a showing, we conclude that the district court correctly declined to apply a two-level reduction pursuant to USSG 2D1.1(b)(11). In remainder appeal. court. writing, of accordance the record we with and Anders, find the no we have reviewed issues the for meritorious of Therefore, affirm judgment the district This court requires that counsel inform his client, in 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 that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel's motion must We dispense state that a copy thereof was served on the client. 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 4

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