US v. Ernesto Gonzalez-Torre

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:09-cr-00678-PMD-1 Copies to all parties and the district court/agency. [998541569] [10-4269]

US v. Ernesto Gonzalez-Torre

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-4269

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. ERNESTO GONZALEZ-TORRES, Defendant ­ Appellant.

Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, Senior District Judge. (2:09-cr-00678-PMD-1)

Submitted:

February 3, 2011

Decided:

March 10, 2011

Before GREGORY, SHEDD, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

J. Robert Haley, Assistant Federal Public Defender, Charleston, South Carolina, for Appellant. Michael Rhett DeHart, Assistant United States Attorney, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Ernesto sentence written imposed plea Gonzalez-Torres following to his appeals guilty the twelve-month to a

plea, of

pursuant

agreement,

possession

counterfeit

credit

cards, in violation of 18 U.S.C. § 1029(a)(2), (a)(3) (2006). Counsel for Gonzalez-Torres with Anders v. filed a brief 386 in this 738 court in

accordance

California,

U.S.

(1967),

certifying that there are no non-frivolous issues for appeal, but questioning whether (1) the district plea; and court (2) erred the in

accepting

Gonzalez-Torres's

guilty

court

imposed an unreasonable sentence.

Gonzalez-Torres was informed

of his right to file a pro se supplemental brief but has not done so. Finding no reversible error, we affirm. Because Gonzalez-Torres did not move to withdraw his guilty plea in the district court or raise any objections to the Federal Rule of Criminal Procedure 11 colloquy, the colloquy is reviewed for plain error. United States v. General, 278 F.3d

389, 393 (4th Cir. 2002); United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002). To demonstrate plain error, a

defendant must show that: (1) there was an error; (2) the error was plain; and (3) the error affected his "substantial rights." United States v. Olano, 507 U.S. 725, 732 (1993). A defendant's

substantial rights are affected if the error "influenced the defendant's decision to plead guilty and impaired his ability to 2

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evaluate with eyes open the direct attendant risks of accepting criminal responsibility." United States v. Goins, 51 F.3d 400,

402-03 (4th Cir. 1995) (internal quotation marks omitted); see also Martinez, 277 F.3d at 532 (holding that a defendant must demonstrate error). A review of the record reveals that the district court fully complied with the requirements of Rule 11. The court that he would not have pled guilty but for the

provided Gonzalez-Torres, a non-native English speaker, with an interpreter, and his answers reflect a thorough understanding of the proceeding. The court ensured that Gonzalez-Torres's plea

was knowing and voluntary, that he understood the rights he was giving up by pleading guilty and the sentence he faced, and that he committed the offense to which he pled guilty. Accordingly,

we hold that the district court did not err in conducting the plea colloquy. Because Gonzalez-Torres did not request a different

sentence than the one ultimately imposed, we review his sentence for plain error. See United States v. Lynn, 592 F.3d 572, 578We must begin by reviewing the sentence for

79 (4th Cir. 2010).

significant procedural error, including such errors as "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [2006] factors, selecting a sentence based 3

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on clearly erroneous facts, or failing to adequately explain the chosen sentence including an explanation for any deviation from the Guidelines." If there are Gall v. United States, 552 U.S. 38, 51 (2007). no procedural errors, we then consider the

substantive reasonableness of the sentence, taking into account the totality of the circumstances. F.3d 468, 473 (4th Cir. 2007). "When rendering a sentence, the district court `must make an individualized assessment based on the facts United States v. Pauley, 511

presented.'" Cir. 2009)

United States v. Carter, 564 F.3d 325, 328 (4th (quoting Gall, 552 U.S. at 50). Accordingly, a

sentencing court must apply the relevant § 3553(a) factors to the particular facts presented and must "state in open court" the particular reasons that support its chosen sentence. The court's explanation need not be exhaustive; it must Id. be

"sufficient `to satisfy the appellate court that [the district court] has considered the parties' arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.'" United States v. Boulware, 604 F.3d 832, 837 (4th Cir. 2010) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)). When, as here, the district court imposes a withinGuidelines extensive, sentence, while the district court may "provide a less

still

individualized,

explanation."

United

States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009), cert. 4

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denied,

130

S.

Ct.

2128

(2010).

That

explanation

must

be

sufficient to allow for "meaningful appellate review" such that we need "not guess at the district court's rationale." 564 F.3d at 329-30 (internal quotation marks omitted). where clear a matter the is conceptually judge simple "and the the Carter, However, makes and

record

that

sentencing

considered

evidence

arguments," we do not require an extensive explanation. 551 U.S. at 359. We both conclude and is that the district court's

Rita,

sentence

was

procedurally sentence

substantively the

reasonable.

Gonzalezrange.

Torres's

within

applicable

Guidelines

See U.S. Sentencing Guidelines Manual ch. 5, pt. A (sentencing table). and The district court used the correct Guidelines range that it was advisory. Furthermore, it is

understood

apparent from the court's discussion with counsel and GonzalezTorres that it considered both parties' arguments and had a

reasoned basis for its decision.

See Rita, 551 U.S. at 359.

In accordance with Anders, we have examined the entire record and find no other meritorious issues for appeal. therefore affirm the district court's judgment. This We court

requires that counsel inform Gonzalez-Torres, in writing, of the right to petition the Supreme Court of the United States for further review. filed, but If Gonzalez-Torres requests that a petition be believes that 5 such a petition would be

counsel

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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 Gonzalez-Torres. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

6