US v. Nestor Duarte

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00107-JAB-1 Copies to all parties and the district court/agency. [999849527].. [15-4585]

Appeal: 15-4585

Doc: 27

Filed: 06/10/2016

Pg: 1 of 5

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4585

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NESTOR IVAN DUARTE, a/k/a Josue Cruz Estrada,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:14-cr-00107-JAB-1)

Submitted:

May 31, 2016

Before NIEMEYER
Circuit Judge.

and

AGEE,

Decided:

Circuit

Judges,

and

June 10, 2016

DAVIS,

Senior

Affirmed by unpublished per curiam opinion.

James E. Quander, Jr., Winston-Salem, North Carolina, for
Appellant.
Graham Tod Green, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 15-4585

Doc: 27

Filed: 06/10/2016

Pg: 2 of 5

PER CURIAM:
Nestor Ivan Duarte appeals his conviction and sentence for
two counts of obstructing commerce by robbery, in violation of
18 U.S.C. §§ 2, 1951(a) (2012).
a

written

plea

imprisonment
counsel

for

and

agreement
3

Duarte

Duarte pled guilty pursuant to

years

and

filed

of

was

sentenced

supervised
a

brief

to

312

months’

release.

On

appeal,

pursuant

to

Anders

v.

California, 386 U.S. 738 (1967), asserting that there are no
meritorious issues for appeal but seeking review of the adequacy
of the district court’s Fed. R. Crim. P. 11 plea colloquy ∗ and
the reasonableness of Duarte’s sentence.

Duarte did not file a

supplemental pro se brief, despite receiving notice of his right
to do so.

The Government elected not to file a response to the

Anders brief.

We affirm the district court’s judgment.

Prior to accepting a guilty plea, a trial court, through
colloquy with the defendant, must inform the defendant of, and
determine that he understands, the nature of the charge to which
the plea is offered, the penalties he faces, and the various
∗

Counsel asserts that the district court’s plea colloquy
insufficiently addressed the appellate waiver contained in
Duarte’s plea agreement.
The Government has not sought to
enforce the waiver in this case; accordingly, we conduct a full
review of the record as required by Anders.
See United States
v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (“If an Anders
brief is filed, the government is free to file a responsive
brief raising the waiver issue (if applicable) or do nothing,
allowing this court to perform the required Anders review.”).

2

Appeal: 15-4585

Doc: 27

Filed: 06/10/2016

Pg: 3 of 5

rights he is relinquishing by pleading guilty.

Fed. R. Crim. P.

11(b)(1); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir.
1991).

The district court also must ensure that the defendant’s

plea was voluntary, was supported by a sufficient factual basis,
and

did

not

result

from

force,

threats,

contained in the plea agreement.
(3); DeFusco, 949 F.2d at 119-20.

or

promises

not

Fed. R. Crim. P. 11(b)(2),
“In reviewing the adequacy of

compliance with Rule 11, [we] should accord deference to the
trial court’s decision as to how best to conduct the mandated
colloquy with the defendant.”

DeFusco, 949 F.2d at 116.

Because Duarte did not move to withdraw his guilty plea in
the district court or otherwise preserve any allegation of Rule
11 error, we review the plea colloquy for plain error.
States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014).

United

“To prevail

on a claim of plain error, [Duarte] must demonstrate not only
that the district court plainly erred, but also that this error
affected his substantial rights.”
plea

context,

a

defendant

Id. at 816.

“must

In the guilty

demonstrate

a

reasonable

probability that, but for the error, he would not have pleaded
guilty.”

Id. (internal quotation marks omitted).

will

correct

not

any

error

unless

we

are

“Further, we

convinced

that

a

refusal to do so would seriously affect the fairness, integrity
or public reputation of judicial proceedings.”
quotation

marks

omitted).

We
3

conclude

that

Id. (internal
Duarte

has

not

Appeal: 15-4585

Doc: 27

Filed: 06/10/2016

Pg: 4 of 5

established plain error in his Rule 11 hearing.

The district

court correctly found Duarte’s plea knowing and voluntary.
Turning

to

Duarte’s

sentence,

procedural

and

substantive

deferential

abuse-of-discretion

court

did

not

review

a

standard.”

sentence

for

applying

reasonableness,

States, 552 U.S. 38, 51 (2007).
district

we

“a

Gall

v.

United

We must first ensure that the

commit

any

“significant

procedural

error,” such as failing to properly calculate the applicable
Sentencing Guidelines range, failing to consider the 18 U.S.C.
§ 3553(a) (2012) sentencing factors, or failing to adequately
explain the sentence.
reasonable,
Id.

we

Id.

then

If we find the sentence procedurally

consider

its

substantive

reasonableness.

We presume on appeal that a sentence within the properly

calculated Guidelines range is substantively reasonable.
States

v.

Strieper,

666

F.3d

288,

295

(4th

Cir.

United

2012);

see

United States v. Aplicano-Oyuela, 792 F.3d 416, 425 (4th Cir.
2015)

(applying

presumption

to

term

of

supervised

release).

“Such a presumption can only be rebutted by showing that the
sentence

is

unreasonable

§ 3553(a) factors.”

when

measured

against

the

. . .

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

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

review,
error

we
by

discern

the

no

district

procedural
court.

The

or

substantive

district

court

correctly calculated Duarte’s offense level, criminal history,
4

Appeal: 15-4585

Doc: 27

Filed: 06/10/2016

Pg: 5 of 5

and advisory Guidelines range.
an

adequate

appropriate

opportunity
sentence

allocute.

and

Finally,

individualized

to

The court afforded the parties

present

provided
the

explanation

arguments
Duarte

court

of

the

an

concerning

the

opportunity

to

provided

an

adequate,

within-Guidelines

sentence.

Nothing in the record rebuts the presumption that the sentence
is substantively reasonable.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal.
therefore

affirm

the

district

court’s

judgment.

This

We

court

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

the

Supreme

review.

If

Duarte

Court

of

requests

the
that

United
a

States

petition

be

for

further

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 Duarte.

We dispense with oral argument because

the facts and legal contentions are adequately presented in the
materials

before

this

court

and

argument

would

not

aid

the

decisional process.
AFFIRMED

5