UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4958
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
XAVIER BAHENA,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-05-54)
Submitted: March 22, 2006 Decided: April 11, 2006
Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mark E. Edwards, EDWARDS AND TRENKLE, PLLC, Durham, North Carolina,
for Appellant. Randall Stuart Galyon, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Xavier Bahena pled guilty to one count of conspiracy to
distribute five kilograms or more of a mixture and substance
containing a detectable amount of cocaine hydrochloride and one
count of possession with intent to distribute 6.827 kilograms (net
weight) of a mixture and substance containing a detectable amount
of cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A); 846 (2000). Bahena was sentenced to a 135-month term of
imprisonment. We affirm the convictions and sentence.
Because the district court determined Bahena was
responsible for 20.887 kilograms (net weight) of cocaine
hydrochloride, Bahena was assigned a base offense level of
thirty-four. See U.S. Sentencing Guidelines Manual § 2D1.1(c)(3)
(2004). The district court then enhanced Bahena’s offense level by
two for possession of a firearm. See USSG § 2D1.1(b)(1). After
the application of a three-level adjustment for acceptance of
responsibility, Bahena’s adjusted offense level was thirty-three.
Because Bahena was assessed no criminal history points, he was
placed in criminal history category I. The resulting advisory
guideline range was 135 to 168 months.
As Bahena did not object, the district court adopted the
findings in the Presentence Investigation Report. Bahena’s counsel
requested the court to
consider either a sentence at the low end of the range,
which [was] recommended by the probation office, or
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possibly even below that range based on [Bahena’s] lack
of criminal history and his age and in fact he has a
young child that he needs to get back to and support.
The district court noted that it had considered the arguments of
counsel, the presentence report, as well as the relevant 18 U.S.C.
§ 3553(a) (2000) factors, and sentenced Bahena to imprisonment for
135 months. In doing so, the court stated that “in this instance
the advisory guidelines constitute an appropriate sentencing
alternative based upon the facts of this case.”
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that there were no
meritorious grounds for appeal, but raising the issue of whether
the district court erred when it decided not to sentence Bahena
below the guidelines. Although Bahena was informed of his right to
file a pro se supplemental brief, he did not do so.
“A district court’s decision not to depart from the
Sentencing Guidelines is not reviewable unless the court mistakenly
believed it lacked authority to depart.” United States v. Carr,
271 F.3d 172, 176 (4th Cir. 2001). Before making its decision, the
district court noted that it had considered the arguments of
counsel, including counsel’s request that Bahena be sentenced at
either the low end or below the guideline range. The court stated
several times that it was treating the guidelines as advisory, but
ultimately determined that the advisory guideline range was
appropriate. Accordingly, we conclude the district court’s
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decision to not sentence Bahena below the guideline range is not
subject to appellate review. In addition, even if we were to
review the sentence imposed by the district court, we would
conclude without difficulty that the sentence, which was at the
bottom of the properly calculated guideline range, was reasonable.
See United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly we affirm Bahena’s convictions 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 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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