US v. Jose Pina

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:12-cr-00049-RLV-DCK-2 Copies to all parties and the district court/agency. [999553307].. [14-4355]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4355

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE FRANCISCO JIMENEZ PINA, a/k/a Jose Jimenez Mancilla,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Richard L.
Voorhees, District Judge. (5:12-cr-00049-RLV-DCK-2)

Submitted:

March 11, 2015

Decided:

March 26, 2015

Before SHEDD, FLOYD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Samuel B. Winthrop, WINTHROP & WINTHROP, Statesville, North
Carolina, for Appellant.
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Unpublished opinions are not binding precedent in this circuit.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:
Jose Francisco Jimenez Pina pleaded guilty, pursuant to a
written

plea

agreement,

to

possess

with

intent

distribute

at

mixture

and

containing

a

to

substance

methamphetamine,

in

(i)

violation

conspiracy

of

to

least

distribute
500

grams

and

of

a

detectable

amount

U.S.C.

841(a)(1),

21

§§

of

(b)(1)(A), 846, and (ii) possession of a firearm in furtherance
of a drug trafficking crime, in violation of 18 U.S.C. § 924(c).
The district court sentenced Pina to the mandatory-minimum 120
months’

imprisonment

for

the

conspiracy,

followed

by

a

consecutive 60 months for the firearm conviction, for a total
sentence of 180 months’ imprisonment.

On appeal, Pina’s counsel

has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that there are no meritorious issues for appeal,
but questioning whether (1) the district court properly applied
a

two-level

enhancement

for

maintaining

a

premises

for

the

purpose of manufacturing or distributing methamphetamine and (2)
Pina’s sentence should be remanded to the district court for
application of Amendment 782 to the Sentencing Guidelines.
has

filed

coerced

a

pro

into

se

supplemental

pleading

guilty

substantively unreasonable.

brief,
and

arguing

that

his

that

Pina

he

was

sentence

is

We affirm.

In accordance with Anders, we have reviewed the record in
this

case,

and

have

found

no
2

meritorious

issues.

Before

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accepting Pina’s guilty pleas, the magistrate judge conducted a
thorough

plea

requirements

colloquy,

of

Rule

11

substantially

of

the

satisfying

Federal

Rules

of

the

Criminal

Procedure and ensuring that Pina’s plea was knowing, voluntary,
and supported by an independent factual basis.
Counsel

questions

whether

the

district

court

properly

applied a two-level enhancement for maintaining a premises for
the
We

purpose
review

of

manufacturing

sentences

for

41

(2007).

We

distributing

reasonableness

abuse-of-discretion standard.”
38,

or

first

methamphetamine.

“under

a

deferential

Gall v. United States, 552 U.S.
ensure

that

the

district

court

committed no “significant procedural error,” including improper
calculation of the Guidelines range, insufficient consideration
of the 18 U.S.C. § 3553(a) factors, and inadequate explanation
of the sentence imposed.

Id. at 51.

Because Pina failed to

raise this issue below, we review for plain error only.

United

States v. Slade, 631 F.3d 185, 189-90 (4th Cir. 2011).
“If the defendant maintained a premises for the purpose of
manufacturing or distributing a controlled substance, increase
[the

offense

(2012).
need

level]

by

2

levels.”

U.S.S.G.

§

2D1.1(b)(12)

“Manufacturing or distributing a controlled substance

not

maintained,

be

the

but

sole

must

be

purpose
one

of

principal uses for the premises.”
3

for
the

which

the

premises

defendant’s

primary

Id. § 2D1.1 cmt. n.17.

was
or

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We

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conclude

that

Pina

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has

not

affecting his substantial rights.

demonstrated

any

error

“To satisfy this requirement

in the sentencing context, the defendant must show that he would
have

received

a

lower

sentence

had

the

error

not

occurred.”

United States v. Knight, 606 F.3d 171, 178 (4th Cir. 2010).

The

district

the

statutory

court

here

mandatory

could impose.

departed
minimum

below

the

sentence,

Guidelines

the

lowest

to

sentence

it

Thus, we ascertain no plain error in the district

court’s calculation of the Guidelines range that affected Pina’s
substantial rights.
If a sentence is procedurally reasonable, we then consider
whether it is substantively reasonable, “tak[ing] into account
the totality of the circumstances.”
sentence

that

Guidelines

is

range

is

within

or

Gall, 552 U.S. at 51.

below

presumptively

a

“Any

properly

calculated

[substantively]

reasonable.

Such a presumption can only be rebutted by showing that the
sentence is unreasonable when measured against the 18 U.S.C.
§ 3553(a) factors.”

United States v. Louthian, 756 F.3d 295,

306 (4th Cir. 2014) (citation omitted).
the

record,

we

conclude

that

Pina

After careful review of

has

failed

to

rebut

the

presumed reasonableness of his below-Guidelines sentence.
Finally, counsel questions whether Pina’s sentence should
be remanded to the district court to allow the court to apply
Amendment 782 to the Guidelines.
4

There is no authority for

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counsel’s suggestion, and we decline to vacate Pina’s sentence
on this basis.
Accordingly, we affirm the district court’s judgment.
court

requires

that

counsel

inform

Pina,

in

writing,

of

This
the

right to petition the Supreme Court of the United States for
further review.

If Pina requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then
counsel

may

move

representation.

in

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Pina.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the material before this
court and argument will not aid the decisional process.
AFFIRMED

5