US v. Eleazer Jimenez

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cr-00057-MOC-1. Copies to all parties and the district court. [999600170]. [14-4675]

Appeal: 14-4675

Doc: 32

Filed: 06/11/2015

Pg: 1 of 7

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4675

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ELEAZER ROMERO JIMENEZ, a/k/a Machine,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:13-cr-00057-MOC-1)

Submitted:

May 20, 2015

Decided:

June 11, 2015

Before MOTZ, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Diana Stavroulakis, Pittsburgh, Pennsylvania, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 14-4675

Doc: 32

Filed: 06/11/2015

Pg: 2 of 7

PER CURIAM:
Eleazer

Romero

Jimenez

appeals

the

district

court’s

judgment and his sentence after pleading guilty to conspiracy to
possess

with

cocaine

in

intent

violation

to

distribute

of

21

five

U.S.C.

or

§ 846

more

kilograms

(2012).

of

Jimenez’s

attorney has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), asserting that there are no meritorious grounds
for appeal but raising the issues of whether the district court
had jurisdiction over the case, whether Jimenez’s guilty plea
was knowing and voluntary, whether his appeal waiver was knowing
and voluntary, and whether his sentence was reasonable.

Jimenez

has filed a pro se supplemental brief arguing that the district
court did not have jurisdiction over his case.

We affirm.

First, because Jimenez was indicted and pled guilty to a
federal crime, the district court had jurisdiction over the case
pursuant to 18 U.S.C. § 3231 (2012).

Counsel next raises the

issue of whether Jimenez’s plea was knowing and voluntary.
“[F]or a guilty plea to be valid, the Constitution imposes
‘the

minimum

requirement

that

[the]

plea

be

expression of [the defendant’s] own choice.’”

the

voluntary

United States v.

Moussaoui, 591 F.3d 263, 278 (4th Cir. 2010) (quoting Brady v.
United States, 397 U.S. 742, 748 (1970)).

“It must reflect a

voluntary and intelligent choice among the alternative courses
of action open to the defendant.”
2

Id. (citation and internal

Appeal: 14-4675

Doc: 32

quotation

Filed: 06/11/2015

marks

omitted).

Pg: 3 of 7

“In

evaluating

the

constitutional

validity of a guilty plea, courts look to the totality of the
circumstances surrounding [it], granting the defendant’s solemn
declaration

of

guilt

a

presumption

of

truthfulness.”

Id.

(citation and internal quotation marks omitted).
In federal cases, Rule 11 of the Federal Rules of Criminal
Procedure “governs the duty of the trial judge before accepting
a

guilty

(1969).

plea.”

Boykin

v.

Alabama,

395

U.S.

238,

243

n.5

Rule 11 “requires a judge to address a defendant about

to enter a plea of guilty, to ensure that he understands the law
of his crime in relation to the facts of his case, as well as
his rights as a criminal defendant.”

United States v. Vonn, 535

U.S. 55, 62 (2002).

We “accord deference to the trial court’s

decision

best

as

to

how

to

conduct

the

mandated

colloquy.”

United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).

A

guilty plea may be knowingly and intelligently made based on
information received before the plea hearing.

See id. at 117;

see also Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (trial
court may rely on counsel’s assurance that the defendant was
properly informed of the elements of the crime).
“A federal court of appeals normally will not correct a
legal error made in criminal trial court proceedings unless the
defendant
attention.”

first

brought

the

error

to

the

trial

court’s

Henderson v. United States, 133 S. Ct. 1121, 1124
3

Appeal: 14-4675

Doc: 32

(2013)

Filed: 06/11/2015

(citing

(1993)).

United

Pg: 4 of 7

States

v.

Olano,

507

U.S.

725,

731

Federal Rule of Criminal Procedure 52(b) creates an

exception to the normal rule, providing “[a] plain error that
affects substantial rights may be considered even though it was
not brought to the court’s attention.”

Fed. R. Crim. P. 52(b).

When a defendant does not seek to withdraw his guilty plea
in the district court, we review any claims that the court erred
at his guilty plea hearing for plain error.

United States v.

Martinez, 277 F.3d 517, 524, 527 (4th Cir. 2002).

It is the

defendant’s burden to show (1) error; (2) that was plain; (3)
affecting

his

substantial

rights;

and

(4)

exercise our discretion to notice the error.
532.

that

we

should

See id. at 529,

To show prejudice, he “must show a reasonable probability

that, but for the error, he would not have entered the plea.”
United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
We have reviewed the record and conclude that Jimenez fails
to show any plain error by the district court, and his guilty
plea

was

knowing

circumstances.

and

voluntary

based

on

a

totality

of

the

Jimenez pled guilty because he was guilty, and

he received a substantial benefit from his plea agreement.

His

decision to plead guilty was a voluntary and intelligent choice
among the alternative choices of action open to him.
Counsel next questions whether Jimenez’s appeal waiver was
knowing

and

voluntary.

“Plea
4

bargains

rest

on

contractual

Appeal: 14-4675

Doc: 32

Filed: 06/11/2015

Pg: 5 of 7

principles, and each party should receive the benefit of its
bargain.”

United States v. Blick, 408 F.3d 162, 173 (4th Cir.

2005) (citation and internal quotations omitted).

“A defendant

may waive the right to appeal his conviction and sentence so
long as the waiver is knowing and voluntary.”

United States v.

Davis, 689 F.3d 349, 354 (4th Cir. 2012) (citing United States
v. Marin, 961 F.2d 493, 496 (4th Cir. 1992)).

We review the

validity of an appeal waiver de novo, and we “will enforce the
waiver if it is valid and the issue appealed is within the scope
of the waiver.”

Id. (citing Blick, 408 F.3d at 168).

While the

validity of an appeal waiver often depends on the adequacy of
the plea colloquy, the issue ultimately depends on the totality
of the circumstances.
We

have

Blick, 408 F.3d at 169.

reviewed

the

plea

agreement

and

the

Rule

11

hearing, and we conclude that Jimenez’s appellate waiver was
knowing and voluntary.

However, because the Government has not

moved to dismiss the appeal, we decline to enforce the waiver.
Finally, counsel questions whether Jimenez’s sentence was
reasonable.

We review the reasonableness of a sentence using an

abuse-of-discretion standard.

United States v. Lymas, 781 F.3d

106, 111 (4th Cir. 2015) (citing Gall v. United States, 552 U.S.
38, 41 (2007)).

First, we consider whether the district court

committed any significant procedural error, such as improperly
calculating

the

Guidelines

range
5

or

failing

to

adequately

Appeal: 14-4675

Doc: 32

Filed: 06/11/2015

explain the sentence.
procedurally

circumstances.
a

properly

reasonable.
2012).

Gall, 552 U.S. at 51.

reasonable,

reasonableness,

taking
Id.

Pg: 6 of 7

we

then

into

If the sentence is

consider

account

the

its

substantive

totality

of

the

We presume that a sentence within or below

calculated

Guidelines

range

is

substantively

United States v. Susi, 674 F.3d 278, 289 (4th Cir.

A defendant can only rebut the presumption by showing

the sentence is unreasonable when measured against the 18 U.S.C.
§ 3553(a) (2012) factors.

United States v. Louthian, 756 F.3d

295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014).
The district court “must make an individualized assessment
based

on

the
the

apply[ing]

facts

presented

relevant

§

when

3553(a)

imposing

factors

to

a

sentence,

the

specific

circumstances of the case and the defendant, and must state in
open

court

sentence.”

the

particular

Lymas,

781

quotation marks omitted).

F.3d

reasons
at

supporting

113

(citation

its
and

chosen
internal

“[A] district court’s explanation of

its sentence need not be lengthy, but the court must offer some
individualized

assessment

justifying

the

sentence

imposed

and

rejection of arguments for a higher or lower sentence based on
§ 3553.”

Id. (citation and internal quotation marks omitted).

We have reviewed the record and conclude that Jimenez’s
sentence is procedurally and substantively reasonable, and the
district

court

did

not

abuse

its
6

discretion

in

imposing

the

Appeal: 14-4675

Doc: 32

sentence.

Filed: 06/11/2015

Pg: 7 of 7

The district court correctly calculated his advisory

Guidelines range and reasonably determined that a sentence at
the bottom of the range was appropriate in this case.

The court

considered but denied Jimenez’s request for a variance sentence
below the range due to the huge quantity of drugs and the extent
of his involvement as “a significant point of those drugs.”
In accordance with Anders, we have reviewed the record and
have found no meritorious issues for appeal.
affirm the district court’s judgment.

Accordingly, we

This court requires that

counsel inform his or her client, in writing, of his or her
right to petition the Supreme Court of the United States for
further
filed,

review.
but

If

counsel

the

client

believes

requests

that

such

that
a

a

petition

petition

would

be
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 the client.

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED

7