US v. Berny Nunez

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:12-cr-00328-FDW-1 Copies to all parties and the district court/agency. [999496940]. [14-4427]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4427

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BERNY ALONSO NUNEZ,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
Chief District Judge. (3:12-cr-00328-FDW-1)

Submitted:

November 25, 2014

Decided:

December 19, 2014

Before KING, SHEDD, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Denzil H. Forrester, Charlotte, 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Unpublished opinions are not binding precedent in this circuit.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:
Berny A. Nunez pled guilty, without the benefit of a
written plea agreement, to conspiracy to distribute and possess
with intent to distribute 50 grams or more of methamphetamine,
in violation of 21 U.S.C. §§ 841(b)(1)(A), 846 (2012). *

Based on

a total offense level of 33, and a Criminal History category of
I,

Nunez’s

imprisonment.

advisory
At

Guidelines

sentencing,

range

the

was

district

135-168
court

months’

found

that

Nunez qualified for the safety valve provision and lowered his
total offense level to 29, with a resulting advisory Guidelines
range of 87 to 108 months’ imprisonment.
87-month

sentence,

below

sentence of 120 months.

the

statutory

The court imposed an
mandatory

minimum

Nunez noted a timely appeal.

Nunez’s counsel has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), stating that there are no
meritorious

grounds

for

appeal

but

questioning

whether

the

district court erred in failing to require the prosecution to
disclose, at Nunez’s guilty plea hearing, that he might qualify
for the safety valve reduction.

Although advised of his right

to file a pro se supplemental brief, Nunez has not done so.

*

Counsel’s brief states that Nunez signed a plea agreement
containing a waiver of his right to a direct appeal. The record
discloses, however, that Nunez pled guilty without a plea
agreement.

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Because Nunez did not move in the district court to
withdraw his guilty plea, the Rule 11 hearing is reviewed for
plain error.

United States v. Martinez, 277 F.3d 517, 525 (4th

Cir. 2002).

To establish plain error, Nunez must demonstrate

that (1) the district court committed an error; (2) the error
was plain; and (3) the error affected his substantial rights.
Henderson v. United States, 133 S. Ct. 1121, 1126 (2013).

In

the

of

guilty

plea

context,

a

defendant

meets

his

burden

demonstrating that an error affected his substantial rights by
showing a reasonable probability that he would not have pled
guilty

but

for

the

Rule

11

omission.

United

States

v.

Massenburg, 564 F.3d 337, 343 (4th Cir. 2009).
We find that Nunez cannot show error, let alone plain
error, in the context of his Rule 11 hearing.
that

the

Government’s

attorney

should

have

Counsel argues

been

required

to

mention the safety valve possibility during the Rule 11 hearing.
But there is no such requirement under Rule 11, and Nunez has
provided
because

no

authority

Nunez

was

suggesting

given

the

otherwise.

benefit

of

In
the

any

safety

event,
valve

provision at sentencing, any hypothetical error would have been
harmless.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Nunez’s conviction and sentence.
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This court

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requires that counsel inform Nunez, in writing, of the right to
petition

the

Supreme

Court

of

the

United

States

for

further

review.

If Nunez requests that a petition be filed, but counsel

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

move

in

representation.

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Nunez.
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

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