US v. Eliazar Dominguez
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00083-NCT-1 Copies to all parties and the district court/agency. [999964315].. [15-4625]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4625
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ELIAZAR GUZMAN DOMINGUEZ, a/k/a CHI,
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. (1:15-cr-00083-NCT-1)
Submitted:
October 11, 2016
Decided:
November 8, 2016
Before GREGORY, Chief Judge, and WILKINSON and DIAZ, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Randall Stuart Galyon, OFFICE OF THE
UNITED
STATES
ATTORNEY,
Greensboro,
North
Carolina,
for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Eliazar
distribute
Guzman
Dominguez
cocaine
§§ 841(b)(1)(C),
to
Appellate
counsel
California,
hydrochloride,
846
Dominguez
108
386
pled
(2012).
months’
has
U.S.
in
The
a
district
brief
(1967),
meritorious issues for appeal.
to
violation
imprisonment,
filed
738
guilty
and
of
21
court
he
pursuant
stating
conspiracy
that
to
U.S.C.
sentenced
now
appeals.
to
Anders v.
there
are
no
Dominguez has filed a pro se
supplemental brief, asserting that his guilty plea was coerced,
the evidence was insufficient to establish his guilt, he was
entrapped
by
the
police,
his
sentence
was
procedurally
unreasonable, and his appellate counsel was ineffective.
Turning first to Dominguez’s argument that he was coerced
into pleading guilty, because he did not seek to withdraw his
guilty plea, the acceptance of his plea is reviewed only for
plain error.
422
(4th
occurred
United States v. Aplicano-Oyuela, 792 F.3d 416,
Cir.
in
conducting
2015).
the
the
We
acceptance
plea
conclude
of
colloquy,
that
no
Dominguez’s
the
court
reversible
guilty
plea.
complied
with
error
In
every
requirement of Fed. R. Crim. P. 11, thereby raising a “strong
presumption that the plea is final and binding.”
United States
v. Nicholson, 676 F.3d 376, 384 (4th Cir. 2012).
although
accepting
Dominguez
the
asserts
guilty
that
plea,
counsel
Dominguez
2
Furthermore,
scared
provides
him
no
into
facts
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supporting his assertion.
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To the contrary, Dominguez informed
the district court on more than one occasion that his plea was
given voluntarily and absent any coercion.
Given the thorough
plea colloquy and Dominguez’s sworn statements that he was not
coerced into pleading guilty, no plain error occurred in the
acceptance of his guilty plea.
We further conclude that Dominguez waived his claims of
insufficient evidence and entrapment by pleading guilty.
See
United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993) (“[A]
guilty
plea
constitutes
a
waiver
of
all
nonjurisdictional
defects, including the right to contest the factual merits of
the charges.”) (citations and internal quotation marks omitted).
Dominguez next argues that his sentence was procedurally
unreasonable.
“Procedural errors include ‘failing to calculate
(or improperly calculating) the Guidelines range, treating the
Guidelines
as
mandatory,
failing
to
consider
the
§ 3553(a)
factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence — including
an explanation for any deviation from the Guidelines range.’”
United
States
v.
Carter,
564
F.3d
325,
328
(4th
Cir.
2009)
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
Dominguez argues that the district court erred in relying
on a prior conviction in determining his criminal history score
and
relied
on
erroneous
facts
in
3
determining
drug
quantity.
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Because
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Dominguez
did
not
Pg: 4 of 5
object
to
the
calculation
of
his
criminal history category or offense level, those calculations
are reviewed for plain error.
United States v. McLaurin, 764
F.3d 372, 388 (4th Cir. 2014).
Dominguez
possession
of
argues
that
his
North
cocaine
was
not
a
Carolina
felony,
but
conviction
the
for
Sentencing
Guidelines provide that misdemeanor offenses are counted when
computing
a
exceptions
defendant’s
not
criminal
applicable
Manual § 4A1.2(c) (2014).
here.
history,
U.S.
subject
to
Sentencing
certain
Guidelines
Thus, the conviction in question was
properly counted toward his criminal history and the district
court did not plainly err in determining Dominguez’s criminal
history
category.
Furthermore,
the
uncontroverted
evidence
supports the district court’s determination that Dominguez was
accountable for 20 kilograms of cocaine, and the district court
therefore properly calculated Dominguez’s Guidelines range.
We
thus conclude that the sentence was procedurally reasonable.
Finally, Dominguez argues that his appellate counsel was
ineffective.
It is well established that a defendant may raise a
claim of ineffective assistance of counsel in the
first instance on direct appeal if and only if it
conclusively appears from the record that . . .
counsel
did
not
provide
effective
assistance.
Otherwise, he must raise his claim in the district
court by a collateral challenge pursuant to 28 U.S.C.
§ 2255.
4
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United States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014)
(brackets and internal quotation marks omitted).
The record on
appeal does not meet this demanding standard; Dominguez’s claim
should therefore be raised, if at all, in a § 2255 motion.
In
accordance
with
Anders,
we
have
reviewed
the
entire
record in this case and have found no meritorious issues for
appeal.
We
sentence.
writing,
therefore
affirm
Dominguez’s
conviction
and
This court requires that counsel inform Dominguez, in
of
the
right
to
petition
United States for further review.
the
Supreme
Court
of
the
If Dominguez requests that a
petition be filed, but 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 Dominguez.
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
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