US v. Ramiro Calixtro


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:15-cr-00068-F-3. Copies to all parties and the district court/agency [1000043196]. [16-4315]

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Appeal: 16-4315 Doc: 53 Filed: 03/16/2017 Pg: 1 of 4 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4315 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. RAMIRO CALIXTRO, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Fox, Senior District Judge. (4:15-cr-00068-F-3) Submitted: March 14, 2017 Before FLOYD and Circuit Judge. HARRIS, Decided: Circuit Judges, and March 16, 2017 DAVIS, Senior Affirmed by unpublished per curiam opinion. Jorgelina E. Araneda, ARANEDA & STROUD LAW GROUP, Raleigh, North Carolina, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-4315 Doc: 53 Filed: 03/16/2017 Pg: 2 of 4 PER CURIAM: Ramiro Calixtro appeals from his criminal judgment after he pleaded guilty to conspiracy to possess with intent to distribute cocaine. He received the statutory minimum 60-month sentence. Counsel has California, 386 meritorious grounds U.S. filed 738 for a brief (1967), appeal pursuant stating but to that Anders v. there questioning are whether no the district court substantially complied with Fed. R. Crim. P. 11 in accepting Calixtro’s guilty plea. file a brief. The Government declined to After careful review, we affirm. Prior to accepting a guilty plea, a court must conduct a plea colloquy in which it informs the defendant of, and determines that the defendant understands, the nature of the charge to which he is pleading guilty, the maximum possible penalty he faces, and the various 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). also must ensure that the defendant’s The district court plea is voluntary, supported by a sufficient factual basis, and not the result of force, threats, or promises not contained in the plea agreement. Fed. R. Crim. P. 11(b)(2)-(3); DeFusco, 949 F.2d at 119-20. Because Calixtro 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. 2 Appeal: 16-4315 Doc: 53 Filed: 03/16/2017 Pg: 3 of 4 United States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014). “To prevail on a claim of plain error, [Calixtro] must demonstrate not only that the district court plainly erred, but also that this error affected his substantial rights.” Id. at 816. In the guilty plea context, a defendant establishes that an error affected his substantial rights if he demonstrates a reasonable probability that he would not have pleaded guilty but for the error. Id. The record sufficient that, reveals plea although that colloquy the court the with district Calixtro. expressly court The stated conducted only that a error was plea was the supported by an independent factual basis, it did not develop it on the record. However, neither Calixtro nor the record suggest that, the but for Therefore his error, he would substantial not rights have were pleaded not guilty. affected. Accordingly, we conclude that the district court did not plainly err in accepting Calixtro’s guilty plea. Calixtro filed a pro se brief stating that he did not wish to withdraw his guilty plea and that he only requested review of his mandatory minimum sentence. There was no reversible error in the sentence calculation or imposition. reviewed the entire record In accordance with Anders, we have in meritorious issues for appeal. conviction and sentence. this case and have found no We therefore affirm Calixtro’s This 3 court requires that counsel Appeal: 16-4315 inform Doc: 53 Filed: 03/16/2017 Calixtro, in Supreme Court of the writing, United Pg: 4 of 4 of the States right for to further petition the review. If Calixtro 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 Calixtro. 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 4

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