US v. Herber A. Gonzales-Escobar

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cr-00346-NCT-1 Copies to all parties and the district court/agency. [999627994].. [14-4540]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4540

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HERBER ALEXSANDER GONZALES-ESCOBAR,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
N. Carlton Tilley,
Jr., Senior District Judge. (1:13-cr-00346-NCT-1)

Submitted:

July 23, 2015

Decided:

July 27, 2015

Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Diane K. Jones McVay, JONES MCVAY LAW FIRM, PLLC, Dallas, Texas
for Appellant. Frank Joseph Chut, Jr., Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Herber Gonzales-Escobar appeals his conviction and twentythree-month

sentence

following

his

guilty

plea

to

theft

of

government property and aggravated identity theft, in violation of
18 U.S.C. §§ 641, 1028A (2012).

Gonzales-Escobar’s counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), certifying that there are no meritorious grounds for appeal
but questioning whether the district court erred in denying his
request

for

ineffective.

a

downward

variance

and

whether

counsel

was

Gonzales-Escobar was advised of his right to file a

pro se supplemental brief but did not file one.

We affirm.

We review Gonzales-Escobar’s sentence for reasonableness,
applying an abuse-of-discretion standard.
552 U.S. 38, 41 (2007).

Gall v. United States,

This requires consideration of both the

procedural and substantive reasonableness of the sentence.

Id. at

51. We first assess whether the district court properly calculated
the advisory Guidelines range, considered the factors set forth at
18 U.S.C. § 3553(a) (2012), analyzed any arguments presented by
the parties, and sufficiently explained the selected sentence.
Id. at 49-51.

If we find no procedural error, we review the

sentence for substantive reasonableness, “tak[ing] into account
the totality of the circumstances.”

Id. at 51.

“Any sentence

that is within or below a properly calculated Guidelines range is
presumptively reasonable.”

United States v. Louthian, 756 F.3d
2

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295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014).

The

defendant bears the burden to rebut this presumption “by showing
that the sentence is unreasonable when measured against the . . .
§ 3553(a) factors.”

Id.

Gonzales-Escobar
several

requested

mitigating

a

downward

circumstances,

variance

including

his

based

on

difficult

upbringing, an overstated criminal history, and his acceptance of
responsibility.

The district court denied his request due to the

seriousness of the offense.
for

denying

In light of the court’s explanation

Gonzales-Escobar’s

variance

request

and

its

consideration of the relevant § 3553(a) factors, we conclude that
the sentence was procedurally reasonable.

Moreover, Gonzales-

Escobar offers nothing to rebut the presumption of substantive
reasonableness.
Gonzales-Escobar next asserts that counsel was ineffective
for failing to request that he be placed in the Fast Track program
for

deportable

cognizable

on

aliens.
direct

We

appeal

conclude
because

that

this

claim

conclusively appear on the face of the record.

not

does

ineffectiveness

is

not

United States v.

Benton, 523 F.3d 424, 435 (4th Cir. 2008).
In accordance with Anders, we have reviewed the entire record
in

this

case

and

found

no

meritorious

issues

Accordingly, we affirm the district court’s judgment.

for

appeal.

This court

requires that counsel inform Gonzales-Escobar, in writing, of the
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right to petition the Supreme Court of the United States for
further review.
filed,

but

If Gonzales-Escobar requests that a petition be

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 Gonzales-Escobar.
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

We dispense with
contentions
this

court

are
and

argument would not aid the decisional process.
AFFIRMED

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