US v. Jorge Zarate-Castillo

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to withdraw/relieve/substitute counsel [998413511-2] Originating case number: 1:09-cr-00062-WO-1 Copies to all parties and the district court/agency. [998548062].. [10-4239]

US v. Jorge Zarate-Castillo

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Case: 10-4239

Document: 55

Date Filed: 03/18/2011

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-4239

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JORGE ZARATE-CASTILLO, a/k/a Bartolome Avellaneda Marin, Jose Diaz-Mendez, a/k/a

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:09-cr-00062-WO-1)

Submitted:

November 18, 2010

Decided:

March 18, 2011

Before NIEMEYER, KEENAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Joseph M. Wilson, Jr., MERRITT, FLEBOTTE, WILSON, WEBB & CARUSO, PLLC, Durham, 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Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Jorge eighty-seven convicted of Zarate-Castillo sentence for appeals illegal in his conviction after of 8 and being U.S.C.

month an

reentry

aggravated

felony,

violation

§ 1326(a), (b)(2) (2006).

Counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), certifying that there are no meritorious whether the grounds for appeal. erred Counsel in questions, to run

however,

district

court

failing his

Zarate-Castillo's state sentence. brief in which

sentence

concurrently

with

undischarged

Zarate-Castillo has filed a pro se supplemental he contends that he received ineffective

assistance of counsel.

Finding no reversible error, we affirm.

In accordance with Anders, we have thoroughly reviewed the record to ascertain whether there are any meritorious issues for appeal. Our review of the plea colloquy discloses that the

district court fully complied with the mandates of Fed. R. Crim. P. 11 in accepting Zarate-Castillo's guilty plea. court ensured that the plea was entered The district knowingly and

voluntarily and was supported by an independent factual basis. See United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). We reasonableness, We therefore affirm Zarate-Castillo's conviction. review applying Zarate-Castillo's an abuse of sentence for

discretion

standard.

Gall v. United States, 552 U.S. 38, 51 (2007). 2

This review

Case: 10-4239

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requires consideration of both the procedural and substantive reasonableness of the sentence. district court properly Id. We assess whether the the advisory guidelines

calculated

range, considered the factors set forth in 18 U.S.C. § 3553(a) (2006), 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, 575-76 (4th Cir. 2010); United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). there is no procedural error, we review the If

substantive

reasonableness of the sentence, "examin[ing] the totality of the circumstances to see whether the 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).

If the

sentence is within the guidelines range, we apply a presumption of reasonableness. (2007) (upholding Rita v. United States, 551 U.S. 338, 346-56 presumption of reasonableness for within-

guidelines sentence). We have thoroughly reviewed the record and conclude that the sentence is both procedurally and substantively

reasonable. guidelines

The district court properly calculated the advisory range, considered the § 3553(a) on the for factors, made an and

individualized adequately

assessment the

based

facts its

presented,

explained

reasons 3

chosen

sentence.

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Moreover, Zarate-Castillo has failed to overcome the presumption of reasonableness we accord his within-guidelines sentence. United States v. Go, 517 F.3d 216, 218 (4th Cir. See

2008).

Additionally, we find no abuse of discretion in the district court's decision to run Zarate-Castillo's sentence consecutive to his undischarged 61 F.3d state sentence. (4th Cir. See United States v.

Puckett,

1092,

1097

1995)

(setting

forth

standard of review). Finally, in his pro se supplemental brief, Zarate-

Castillo contends that counsel was ineffective for failing to oppose the imposition of a consecutive sentence; failing to

object to or explain the various aliases attributed to ZarateCastillo; failing to correct the Government's assertion that he had served a only "lack nine of months diligent of his state and sentence; zelous and [sic]

exhibiting

preparation

representation."

Claims of ineffective assistance of counsel,

however, are generally not cognizable on direct appeal, unless counsel's record." "ineffectiveness conclusively appears from the

United States v. Baldovinos, 434 F.3d 233, 239 (4th Because it does not conclusively appear from the

Cir. 2006).

record that Zarate-Castillo received ineffective assistance of counsel, we decline to consider his claims on direct appeal.

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In accordance with Anders, we have reviewed the record and found no meritorious issues on appeal. the judgment of the district court. counsel's motion to withdraw. We therefore affirm

At this juncture, we deny

This court requires that counsel

inform his 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 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 was served on the client. We dispense with oral argument because the facts

and legal contentions are adequately expressed in the materials before the court and argument would not aid the decisional

process. AFFIRMED

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