US v. Keith Rivera

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:15-cr-00024-RJC-5 Copies to all parties and the district court/agency. [1000039726].. [16-4450]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4450

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEITH RIVERA,
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-00024-RJC-5)

Submitted:

February 24, 2017

Before AGEE and
Circuit Judge.

WYNN,

Circuit

Decided:

Judges,

and

March 10, 2017

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

Mark P. Foster, Jr., RAWLS, SCHEER, FOSTER & MINGO, PLLC,
Charlotte, 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Unpublished opinions are not binding precedent in this circuit.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:
Keith

Rivera

pled

guilty,

pursuant

to

a

written

plea

agreement, to possessing with intent to distribute cocaine base,
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2012).
district

court

sentenced

Rivera

to

36

months’

The

imprisonment.

Pursuant to Anders v. California, 386 U.S. 738 (1967), Rivera’s
counsel

has

filed

a

brief

certifying

meritorious grounds for appeal.

that

there

are

no

We affirm the district court’s

judgment.
We first review the adequacy of the Fed. R. Crim. P. 11
hearing;

because

Rivera

did

not

move

to

withdraw

plea, we review the hearing for plain error.
Sanya, 774 F.3d 812, 815 (4th Cir. 2014).

his

guilty

United States v.
Before accepting a

guilty plea, the district court must conduct a plea colloquy in
which

it

informs

the

defendant

of,

and

determines

he

understands, the rights he is relinquishing by pleading guilty,
the

charges

mandatory

to

which

minimum

he

is

penalties

pleading,
he

and

faces.

the

Fed.

maximum
R.

Crim.

and
P.

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

The court also must ensure that the plea was voluntary

and not the result of threats, force, or promises not contained
in the plea agreement, Fed. R. Crim. P. 11(b)(2), and “that
there

is

11(b)(3).

a

factual

basis

for

the

plea,”

Fed.

R.

Crim.

P.

Although we note that there were minor omissions in
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the

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Rule

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colloquy

that

these

conclude

11

2139,

2147

(2013)

conducted

minor

substantial rights.

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by

the

omissions

magistrate

did

not

judge,

affect

we

Rivera’s

See United States v. Davila, 133 S. Ct.
(stating

that,

to

demonstrate

effect

on

substantial rights in Rule 11 context, defendant “must show a
reasonable probability that, but for the error, he would not
have entered the plea” (internal quotation marks omitted)).
Next, we review a defendant’s sentence “under a deferential
abuse-of-discretion standard.”
38, 41 (2007).

Gall v. United States, 552 U.S.

Under this standard, a sentence is reviewed for

both procedural and substantive reasonableness.

Id. at 51.

In

determining procedural reasonableness, we consider whether the
district

court

properly

calculated

the

defendant’s

advisory

Sentencing Guidelines range, gave the parties an opportunity to
argue

for

§ 3553(a)

an

appropriate

(2012)

selected sentence.
“significant

sentence,

factors,

and

Id. at 49-51.

procedural

error,”

considered

sufficiently

the

18

U.S.C.

explained

the

If a sentence is free of
then

we

review

it

for

substantive reasonableness, “tak[ing] into account the totality
of the circumstances.”

Id. at 51.

“Any sentence that is within

or below a properly calculated Guidelines range is presumptively
reasonable.”

United States v. Louthian, 756 F.3d 295, 306 (4th

Cir. 2014).

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Our review of the record leads us to conclude that Rivera’s
sentence is procedurally sound.

We further conclude that Rivera

has

presumption

failed

to

overcome

the

of

reasonableness

accorded his within-Guidelines sentence.
In

accordance

with

Anders,

we

have

reviewed

the

entire

record in this case and have found no meritorious grounds for
appeal.

We

therefore

affirm

the

district

court’s

judgment.

This court requires that counsel inform Rivera, in writing, of
the right to petition the Supreme Court of the United States for
further review.

If Rivera 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 Rivera.
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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