US v. Bidcar Orozco Orozco
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cr-00225-TDS-1. Copies to all parties and the district court/agency. [999403741].. [13-4991]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4991
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BIDCAR EDUARDO OROZCO OROZCO, a/k/a Bidcar Eduardo Orosco,
a/k/a Bidcar Ezer Orozco-Orozco, a/k/a Jesus Miguel Sosa,
a/k/a Eric Castro, a/k/a Erik Rodriguez Castro, a/k/a
Castillo Erik Rodriguez, a/k/a Ruben Matias Calmo Porfirio,
a/k/a Justo Pastor Padilla,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:13-cr-00225-TDS-1)
Submitted:
July 24, 2014
Before FLOYD and
Circuit Judge.
THACKER,
Decided: July 28, 2014
Circuit
Judges,
and
DAVIS,
Senior
Affirmed by unpublished per curiam opinion.
Sandra Baughn Jelovsek, LAW OFFICE OF SANDRA BAUGHN JELOVSEK,
Johnson City, Tennessee, for Appellant. Kyle David Pousson,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Bidcar
Eduardo
Orozco
Orozco
appeals
his
conviction
and ninety-six-month sentence imposed following his guilty plea
to
illegal
reentry
subsequent
to
an
aggravated
violation of 8 U.S.C. § 1326(a), (b)(2) (2012).
felony,
in
On appeal,
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), asserting that there are no meritorious issues
for review but questioning whether (1) Orozco Orozco’s plea was
knowing and voluntary, (2) Orozco Orozco’s prior conviction was
properly designated an “aggravated felony” under § 1326(b)(2),
(3) the district court imposed a reasonable sentence, (4) Orozco
Orozco’s statements to law enforcement were taken in violation
of
Miranda
v.
Arizona,
384
U.S.
436
(1966),
and
(5)
Orozco
Orozco was informed after his arrest of his rights under the
Vienna Convention.
Before
For the reasons that follow, we affirm.
accepting
a
guilty
plea,
the
district
court
must conduct a plea colloquy in which it informs the defendant
of, and determines that he comprehends, the nature of the charge
to which he is pleading guilty, the maximum possible penalty he
faces,
any
mandatory
minimum
penalty,
relinquishing by pleading guilty.
and
the
rights
he
is
Fed. R. Crim. P. 11(b)(1);
United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
The court also must ensure that the plea is voluntary, supported
by an independent factual basis, and not the result of force,
2
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threats, or promises outside the plea agreement.
P. 11(b)(2), (3).
Fed. R. Crim.
Because Orozco Orozco did not challenge his
guilty plea in the district court, we review the plea colloquy
for plain error.
United States v. Martinez, 277 F.3d 517, 525
(4th Cir. 2002); see Henderson v. United States, 133 S. Ct.
1121, 1126-27 (2013) (discussing standard of review).
Here,
the
district
court
fully
complied
with
the
requirements of Rule 11, ensuring that Orozco Orozco’s plea was
knowing and voluntary and supported by an independent factual
basis.
We
understanding
discern
of
the
no
basis
statutory
to
doubt
penalties
Orozco
applicable
Orozco’s
to
his
offense, or to question his knowing and voluntary plea as a
result of the advisements regarding those penalties provided to
him during the plea colloquy.
A defendant who illegally reenters the United States
after
having
aggravated
been
felony
imprisonment.
8
removed
is
following
subject
U.S.C.
to
a
§ 1326(b)(2).
a
conviction
twenty-year
Aggravated
for
an
term
of
felonies
includes “crime[s] of violence,” as defined in 18 U.S.C. § 16
(2012), for which the term of imprisonment is at least one year.
8 U.S.C. § 1101(43)(F) (2012).
A “crime of violence” includes
“an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property
of another.”
18 U.S.C. § 16(a).
3
As counsel concedes, Orozco
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Orozco’s conviction for assault with a deadly weapon inflicting
serious
bodily
violence.”
injury
See
is
N.C.
properly
Gen.
classified
Stat.
§ 14-32
as
a
“crime
(2013);
see
of
also
State v. Walker, 694 S.E.2d 484, 494-95 (N.C. Ct. App. 2010)
(defining “serious injury”).
We review a sentence for reasonableness, applying “a
deferential
abuse-of-discretion
standard.”
States, 552 U.S. 38, 41 (2007).
district
court
including
improper
insufficient
factors,
committed
no
and
inadequate
Id. at 51.
of
v.
United
We “first ensure that the
significant
calculation
consideration
Gall
of
the
error,”
Guidelines
the
18
explanation
procedural
range,
U.S.C.
of
the
§ 3553(a)
sentence
(2012)
imposed.
If we find no procedural error, we examine the
substantive reasonableness of the sentence under “the totality
of the circumstances.”
Id.
but
necessary,”
not
greater
sentencing.
than
The sentence must be “sufficient,
18 U.S.C. § 3553(a).
to
satisfy
the
goals
of
A within-Guidelines sentence
is presumed on appeal to be substantively reasonable, and the
defendant
bears
the
burden
to
“rebut
the
presumption
by
demonstrating that the sentence is unreasonable when measured
against the § 3553(a) factors.”
445
F.3d
375,
379
(4th
Cir.
United States v. Montes-Pineda,
2006)
omitted).
4
(internal
quotation
marks
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Our review of the record before us demonstrates that
the sentence is procedurally reasonable, as the district court
properly
calculated
the
Guidelines
range,
considered
the
parties’ arguments, and provided a thorough explanation for the
sentence imposed.
presumption
of
Further, Orozco Orozco fails to rebut the
reasonableness
accorded
his
within-Guidelines
sentence.
Counsel also questions whether Orozco Orozco’s arrest
violated his rights under the Vienna Convention and whether his
post-arrest
questioning
violated
Miranda.
However,
Orozco
Orozco’s guilty plea forecloses relief on these grounds.
See
United States v. Moussaoui, 591 F.3d 263, 279 (4th Cir. 2010)
(“[T]he defendant who has pled guilty has no non-jurisdictional
ground upon which to attack that judgment except the inadequacy
of the plea or the government’s power to bring any indictment at
all.”
(internal
quotation
Additionally,
we
have
supplemental
brief
and
marks
reviewed
discern
and
citations
Orozco
from
it
omitted)).
Orozco’s
no
se
basis
valid
pro
to
overturn the criminal judgment.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We
therefore
This
court
writing,
of
affirm
Orozco
requires
that
his
right
to
Orozco’s
conviction
counsel
inform
petition
the
5
and
Orozco
Supreme
sentence.
Orozco,
Court
of
in
the
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United States for further review.
that
a
petition
be
filed,
but
If Orozco Orozco requests
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 Orozco Orozco.
We dispense with oral argument because the facts and
legal
before
contentions
this
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED
6
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