US v. Ricardo Reynso Rebollar
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:15-cr-00020-RJC-2 Copies to all parties and the district court/agency. [999976743].. [16-4312]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4312
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICARDO REYNSO REBOLLAR,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Robert J. Conrad,
Jr., District Judge. (3:15-cr-00020-RJC-2)
Submitted:
November 15, 2016
Decided:
November 29, 2016
Before WILKINSON, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Stacey A. Phipps, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:
Ricardo
Reynso
Rebollar
pled
guilty
pursuant
to
a
plea
agreement to conspiracy to distribute and possess with intent to
distribute
21 U.S.C.
court
5
kilograms
§§ 841(a)(1),
calculated
or
more
of
(b)(1)(A),
Rebollar’s
cocaine,
846
in
violation
(2012).
Guidelines
The
range
of
district
under
the
U.S. Sentencing Guidelines Manual (2014) at 168 to 210 months’
imprisonment and sentenced Rebollar to 168 months’ imprisonment.
On appeal, counsel has filed a brief pursuant to Anders v.
California,
386
U.S.
738
(1967),
stating
that
there
are
no
meritorious issues for appeal, but raising as issues for review
whether
the
district
court
reversibly
erred
in
accepting
Rebollar’s guilty plea, whether the district court abused its
discretion
in
imposing
sentence,
rendered ineffective assistance.
and
whether
trial
counsel
Rebollar was informed of his
right to file a pro se supplemental brief, but he has not done
so.
The Government elected not to file a brief and does not
seek to enforce the appeal waiver in Rebollar’s plea agreement. *
We affirm.
*
Because the Government fails to assert the waiver as a bar
to the appeal, we may consider the issues raised by counsel and
conduct an independent review of the record pursuant to Anders.
United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).
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Because
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Rebollar
did
not
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move
in
the
district
court
to
withdraw his guilty plea, the acceptance of his guilty plea is
reviewed
for
plain
error
only.
United
811 F.3d 621, 622 (4th Cir. 2016).
States
v.
Williams,
To demonstrate plain error,
a defendant must show: (1) there was error; (2) the error was
plain;
and
(3)
the
error
affected
his
substantial
United States v. Olano, 507 U.S. 725, 732 (1993).
rights.
In the guilty
plea context, a defendant meets his burden to establish that a
plain
error
affected
his
substantial
rights
by
showing
a
reasonable probability that he would not have pled guilty but
for the district court’s Fed. R. Crim. P. 11 omissions.
United
States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009).
Our review of the transcript of the guilty plea hearing
leads us to conclude that the magistrate judge’s omissions under
Rule
11
did
not
affect
Rebollar’s
substantial
rights.
Additionally, the transcripts of the guilty plea and sentencing
hearings reveal that the magistrate judge and district court
ensured that the plea was supported by an independent basis in
fact
and
that
voluntarily
with
Rebollar
an
entered
the
understanding
plea
of
the
knowingly
and
consequences.
Accordingly, we discern no plain error in the district court’s
acceptance
of
Rebollar’s
guilty
plea.
See
United
DeFusco, 949 F.2d 114, 116, 120 (4th Cir. 1991).
3
States
v.
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Turning to Rebollar’s 168-month sentence, we review it for
reasonableness under a deferential abuse-of-discretion standard.
Gall
v.
United
States,
552
U.S.
38,
41,
51
(2007);
States v. Lymas, 781 F.3d 106, 111 (4th Cir. 2015).
United
In doing
so, we first examine the sentence for procedural error, which
includes “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to
consider
selecting
failing
the
a
to
[18
sentence
adequately
U.S.C.]
based
§ 3553(a)
on
explain
clearly
the
[(2012)]
erroneous
chosen
factors,
facts,
sentence.”
781 F.3d at 111-12 (quoting Gall, 552 U.S. at 51).
or
Lymas,
We then
review the substantive reasonableness of the sentence, “tak[ing]
into account the totality of the circumstances.”
at
51.
Any
Guidelines
sentence
range
is
within
or
below
presumptively
a
Gall, 552 U.S.
properly
substantively
calculated
reasonable.
United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
Such a presumption can only be rebutted by a showing that the
sentence
is
unreasonable
factors.
when
measured
against
the
§ 3553(a)
Id.
In this case, the district court did not reversibly err in
calculating
the
Guidelines
range
and
properly
from counsel and allocution from Rebollar.
heard
argument
The court explained
that the within-Guidelines sentence of 168 months’ imprisonment
was
warranted
in
light
of
the
4
nature
and
seriousness
of
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Rebollar’s offense conduct, to promote respect for the law, to
provide
just
punishment,
protect
the
public,
disparities.
to
and
afford
to
adequate
avoid
deterrence,
unwarranted
to
sentencing
18 U.S.C. § 3553(a)(1), (2)(A)-(C), (6).
Rebollar
does not offer any grounds to rebut the presumption on appeal
that his within-Guidelines sentence is substantively reasonable.
Accordingly, we conclude that the district court did not abuse
its discretion in sentencing Rebollar.
With respect to ineffective assistance of counsel, unless
an attorney’s ineffectiveness conclusively appears on the face
of the record, ineffective assistance claims generally are not
addressed on direct appeal.
424,
435
(4th
conclusively
Cir.
United States v. Benton, 523 F.3d
2008).
establish
Because
ineffective
the
record
assistance
by
does
not
Rebollar’s
trial counsel, we deem this claim inappropriate for resolution
on direct appeal.
See United States v. Baptiste, 596 F.3d 214,
216 n.1 (4th Cir. 2010).
Finally, in accordance with Anders, we have reviewed the
remainder
of
the
record
in
this
meritorious issues for appeal.
court’s
judgment.
This
case
and
have
found
no
We therefore affirm the district
court
requires
that
counsel
inform
Rebollar, in writing, of the right to petition the Supreme Court
of the United States for further review.
that
a
petition
be
filed,
but
5
counsel
If Rebollar requests
believes
that
such
a
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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 Rebollar.
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
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