US v. Hildeberto Gonzalez-Chavez

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:11-cr-00022-RLV-DSC-2 Copies to all parties and the district court/agency. [999105402].. [12-4822]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4822

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HILDEBERTO GONZALEZ-CHAVEZ, a/k/a Beetle,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Richard L.
Voorhees, District Judge. (5:11-cr-00022-RLV-DSC-2)

Submitted:

May 8, 2013

Decided:

May 10, 2013

Before SHEDD, DUNCAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Samuel B. Winthrop, WINTHROP & WINTHROP, Statesville, North
Carolina, for Appellant.
Steven R. Kaufman, Assistant United
States Attorney, Charlotte, North Carolina; Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Hildeberto Gonzalez-Chavez pleaded guilty, pursuant to
a

written

plea

agreement,

distribute

and

possess

to

conspiracy

with

to

intent

manufacture,

to

distribute

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846
(2006).

The district court sentenced Gonzalez-Chavez to 168

months’

imprisonment.

On

appeal,

counsel

has

filed

a

brief

pursuant to Anders v. California, 386 U.S. 738 (1967), alleging
that

the

reasons

district

for

variance

denying

and

Counsel

court

also

erred

by

failing

Gonzalez-Chavez’s

questioning
questions

the

to

request

reasonableness

whether

the

articulate

district

for

of

a

the

court

its

downward
sentence.
erred

in

applying a two-level sentencing enhancement for possession of a
firearm.
joins

In Gonzalez-Chavez’s pro se supplemental brief, he

counsel

in

raising

these

arguments.

declined to file a responsive brief.

The

Government

Following a careful review

of the record, we affirm.
Because Gonzalez-Chavez did not move in the district
court to withdraw his guilty plea, we review the Rule 11 hearing
for plain error.
(4th

Cir.

2002).

United States v. Martinez, 277 F.3d 517, 525
To

prevail

under

this

standard,

Gonzalez-

Chavez must establish that an error occurred, was plain, and
affected his substantial rights.

United States v. Massenburg,

564 F.3d 337, 342-43 (4th Cir. 2009).
2

Our review of the record

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establishes that the district court substantially complied with
Rule 11’s requirements, ensuring that Gonzalez-Chavez’s plea was
knowing and voluntary.
We
deferential
States,

review

Gonzalez-Chavez’s

abuse-of-discretion

552

U.S.

consideration

of

38,

51

both

correctly

This

v.

review
and

a

United
requires

substantive

Id.; United States v. Lynn, 592

F.3d 572, 575 (4th Cir. 2010).
court

under

Gall

procedural

reasonableness of the sentence.

district

standard.

(2007).
the

sentence

After determining whether the

calculated

the

advisory

Guidelines

range, we must decide whether the court considered the § 3553(a)
factors, analyzed the arguments presented by the parties, and
sufficiently explained the selected sentence.

Lynn, 592 F.3d at

575-76; United States v. Carter, 564 F.3d 325, 330 (4th Cir.
2009).
Once we have determined that the sentence is free of
procedural error, we consider the substantive reasonableness of
the

sentence,

“tak[ing]

circumstances.”

into

account

the

totality

of

the

Gall, 552 U.S. at 51; Lynn, 592 F.3d at 575.

If the sentence is within the appropriate Guidelines range, we
apply

a

reasonable.

presumption

on

appeal

that

the

sentence

is

United States v. Mendoza-Mendoza, 597 F.3d 212, 217

(4th Cir. 2010).

Such a presumption is rebutted only if the

defendant demonstrates “that the sentence is unreasonable when
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measured

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the

against

Montes-Pineda,

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factors.”

445

§ 3553(a)

F.3d

375,

379

(4th

United

Cir.

States

2006)

v.

(internal

quotation marks omitted).
Gonzalez-Chavez asserts that the district court erred
in

applying

the

two-level

enhancement,

pursuant

to

U.S.

Sentencing Guidelines Manual (“USSG”) § 2D1.1(b)(1) (2011), for
the

firearm

Chavez

found

in

Gonzalez-Chavez’s

stipulated

in

his

plea

enhancement was applicable.
Government

summarized

stipulation,

and

Gonzalez-Chavez
presentence

the

agreement

report,

not
nor

that

the

Gonzaleztwo-level

At the guilty plea hearing, the
plea

agreement,

Gonzalez-Chavez

did

residence.

object
did

he

confirmed

to
at

including

the
any

its

enhancement
time

dispute

this

accuracy.
in

the

that

he

possessed the firearm in connection with the drug conspiracy.
Accordingly, we conclude that the district court did not err in
applying the enhancement to which Gonzalez-Chavez stipulated.
Gonzalez-Chavez

also

argues

that

the

erred in failing to grant a downward variance.

district

court

The court fully

responded to defense counsel’s argument for a below-Guidelines
sentence,

provided

a

detailed

individualized

clearly explained the imposed sentence.
court

correctly

applicable

calculated

Guidelines

range

and
and

4

assessment,

and

Because the district

considered

as

adequately

advisory

the

explained

its

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sentencing

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determination,

we

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conclude

that

Gonzalez-Chavez’s

sentence was procedurally reasonable.
Finally,

Gonzalez-Chavez

reasonableness of the sentence.

questions

the

substantive

The district court thoroughly

evaluated these arguments in denying Gonzalez-Chavez’s request
for a downward variance.

Furthermore, our review of the record

leads us to conclude that Gonzalez-Chavez has not overcome the
presumption

of

reasonableness

Guidelines sentence.
court

did

not

applicable

to

his

within-

Accordingly, we conclude that the district

abuse

its

discretion

in

sentencing

Gonzalez-

Chavez.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal.
sentence.

We therefore affirm Gonzalez-Chavez’s conviction and
This court requires that counsel inform Gonzalez-

Chavez, in writing, of the right to petition the Supreme Court
of the United States for further review.

If Gonzalez-Chavez

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 GonzalezChavez.
We dispense with oral argument because the facts and
legal

contentions

are

adequately
5

presented

in

the

materials

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this

court

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and

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argument

would

not

aid

the

decisional

process.

AFFIRMED

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