US v. Mario Perez-Sanchez

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cr-00077-MR-DLH-3 Copies to all parties and the district court/agency. [999672804].. [15-4037]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4037

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARIO OLIVER PEREZ-SANCHEZ, a/k/a Catfish,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:13-cr-00077-MR-DLH-3)

Submitted:

September 16, 2015

Decided:

October 6, 2015

Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Charles R. Brewer, Asheville, 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Unpublished opinions are not binding precedent in this circuit.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:
Mario Oliver Perez-Sanchez pleaded guilty to conspiracy to
possess

with

intent

to

distribute

and

distribute

methamphetamine, in violation of 21 U.S.C. § 846 (2012).
district

court

sentenced

Perez-Sanchez

imprisonment and he now appeals.

to

151

months

The
of

Appellate counsel has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),
questioning
assistance

whether
and

substantively

trial

whether

counsel
sentence

the

reasonable.

rendered
is

Perez-Sanchez

ineffective

procedurally
filed

supplemental brief raising additional issues. *

a

pro

and
se

Finding no error,

we affirm.
Appellate
rendered

counsel

ineffective

ineffective

assistance

first

questions

assistance.
of

To

counsel,

a

whether

trial

prove

a

defendant

counsel

claim
must

of
show

(1) “that counsel’s performance was deficient,” and (2) “that
the

deficient

performance

prejudiced

the

defense.”

Strickland v. Washington, 466 U.S. 668, 687 (1984).
second

prong

of

the

test

in

the

context

of

a

Under the
conviction

following a guilty plea, a defendant can show prejudice only by
demonstrating “a reasonable probability that, but for counsel’s

*

We have reviewed the issues raised in Perez-Sanchez’s pro
se supplemental brief and conclude they lack merit.

2

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errors, he would not have pleaded guilty and would have insisted
on going to trial.”

Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Moreover, we may address a claim of ineffective assistance
on

direct

appeal

conclusively
Baldovinos,

only

appears
434

reviewed

assistance

does

record.

233,

the

not

the

the

on

F.3d

thoroughly

if

239

record

lawyer’s

(4th

United

States

Cir.

2006).

conclude

and

conclusively

ineffectiveness

that

appear

on

the

We

v.
have

ineffective
record.

We

therefore decline to address this claim on direct appeal.
Counsel next questions whether the district court erred in
applying an enhancement for a leadership role in the conspiracy
under

the

Sentencing

Guidelines.

Counsel

further

whether the sentence is substantively reasonable.
sentence

for

standard.

reasonableness,

applying

an

abuse

questions

We review a
of

discretion

Gall v. United States, 552 U.S. 38, 51 (2007); see

also United States v. Lymas, 781 F.3d 106, 111 (4th Cir. 2015).
In so doing, we first examine the sentence for any procedural
error,

Lymas,

781

F.3d

at

111-12,

and

then

consider

the

substantive reasonableness of the sentence; if the sentence is
within

the

Guidelines

reasonableness.
(2007)

range,

we

apply

a

presumption

of

See Rita v. United States, 551 U.S. 338, 346-59

(upholding

presumption

of

Guidelines sentence).

3

reasonableness

for

within

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In addition, in reviewing the district court’s calculations
under

the

Guidelines,

“we

review

the

district

court’s

legal

conclusions de novo and its factual findings for clear error.”
United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010)
(internal quotation marks omitted).

We will “find clear error

only if, on the entire evidence, we are left with the definite
and firm conviction that a mistake has been committed.”

Id. at

631 (internal quotation marks omitted).
Under the Guidelines, a four-level enhancement applies to
the offense level if the defendant was an organizer or leader of
a criminal organization that involved five or more participants,
or was otherwise extensive.

U.S. Sentencing Guidelines Manual

§ 3B1.1(a); see also United States v. Cameron, 573 F.3d 179, 184
(4th Cir. 2009).

The district court must find the enhancement

applicable by a preponderance of the evidence.

United States v.

Grubbs, 585 F.3d 793, 803 (4th Cir. 2009).

We conclude that the

district

advisory

range.

court

correctly

calculated

the

Guidelines

In addition, Perez-Sanchez has failed to overcome the

presumption of reasonableness applied to his within-Guidelines
sentence.
We have examined the entire record in accordance with the
requirements of Anders and have found no meritorious issues for
appeal.
court.

Accordingly, we affirm the judgment of the district
This court requires that counsel inform Perez-Sanchez,
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in writing, of the right to petition the Supreme Court of the
United States for further review.
that

a

petition

be

filed,

but

If Perez-Sanchez 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 Perez-Sanchez.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid in the decisional process.

AFFIRMED

5