UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4152
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KERMIT FERNANDEZ-RIVERA, a/k/a The Frog,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Richard L. Williams,
Senior District Judge, sitting by designation. (CR-03-13)
Submitted: May 11, 2005 Decided: July 28, 2005
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
L. Richard Walker, Assistant Federal Public Defender, Clarksburg,
West Virginia, for Appellant. Thomas E. Johnston, United States
Attorney, Thomas O. Mucklow, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kermit Fernandez-Rivera (“Fernandez”) appeals from his
eighty-seven month sentence imposed following his guilty plea to
distribution of crack cocaine in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(B) (2000). Fernandez’s counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738, 744 (1967), stating
that there were no meritorious issues for appeal, but questioning
the amount of drugs properly attributable to Fernandez. Fernandez
has filed a pro se supplemental brief, asserting that he should be
resentenced. Because our review of the record discloses no
reversible error, we affirm Fernandez’s conviction and sentence.
We find that Fernandez’s guilty plea was knowingly and
voluntarily entered after a thorough hearing pursuant to Fed. R.
Crim. P. 11. Fernandez was properly advised of his rights, the
offense charged, and the maximum sentence for the offense. The
court also determined that there was an independent factual basis
for the plea and that the plea was not coerced or influenced by any
promises. See North Carolina v. Alford, 400 U.S. 25, 31 (1970);
United States v. DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991).
In his plea agreement, Fernandez stipulated to an amount
of drugs attributable to him. The record contains no evidence of
a lesser amount, and the district court properly accepted this
stipulation in determining Fernandez’s sentence. Utilizing this
drug quantity, the district court properly computed Fernandez’s
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sentencing range to be 87 to 108 months. The district court
imposed a sentence within this range. See United States v. Jones,
18 F.3d 1145, 1151 (4th Cir. 1994) (holding that imposition of a
sentence within the properly calculated range is not reviewable).
In supplemental briefs, counsel and Fernandez challenge
Fernandez’s sentence under United States v. Booker, U.S. ,
125 S. Ct. 738 (2005), contending that the district court erred by
treating the Sentencing Guidelines as a mandatory system for
purposes of determining his sentence. Because Fernandez did not
object to the application of the Sentencing Guidelines as
mandatory, our review is for plain error. United States v. White,
405 F.3d 208, 215 (4th Cir. 2005). To demonstrate plain error,
Fernandez must establish that error occurred, that it was plain,
and that it affected his substantial rights. Id. (citing United
States v. Olano, 507 U.S. 725, 732 (1993)). Although “the
imposition of a sentence under the former mandatory guidelines
regime rather than under the advisory regime outlined in Booker is
error,” id. at 216-17, we find that Fernandez has failed to carry
his burden of showing that the error affected his substantial
rights. See id. at 223; Olano, 507 U.S. at 734-35. Because our
review of “the record as a whole provides no nonspeculative basis
for concluding that treatment of the guidelines as mandatory”
resulted in actual prejudice, this error may not be corrected on
appeal. Fed. R. Crim. P. 52(b); White, 405 F.3d at 223.
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As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. We therefore
affirm Fernandez’s conviction and sentence. This court requires
that counsel inform his client, in writing, of his right to
petition the Supreme Court of the United States for further review.
If the client 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 the
client. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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