UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4053
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARIO ALBERTO REYES, a/k/a Alberto Garcia,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (3:04-cr-00161-1)
Submitted: October 18, 2006 Decided: November 28, 2006
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Chiege O. Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU OKWARA,
Charlotte, North Carolina, for Appellant. Keith Michael Cave,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Mario Alberto Reyes pleaded guilty, pursuant to a plea
agreement, to one count of conspiracy to possess with intent to
distribute and to distribute 500 grams or more of cocaine, in
violation of 21 U.S.C.A. §§ 846, 841(a)(1), (b)(1)(A) (West 1999 &
Supp. 2006); and one count of using and carrying a firearm during
and in relation to a drug trafficking crime and possessing the
firearm in furtherance of the drug trafficking crime, in violation
of 18 U.S.C.A. § 924(c) (West Supp. 2006) (Count Four). Reyes’s
prior criminal record qualified him for an enhanced sentence as a
career offender. The district court sentenced Reyes to 200 months
of imprisonment on the drug conspiracy, and a consecutive sixty-
month term on the firearm count. On appeal, counsel for Reyes
filed an Anders brief, in which he states there are no meritorious
issues for appeal, but questions whether the district court had
jurisdiction to accept Reyes’s guilty plea and impose sentence,
whether the district court erred in accepting Reyes’s guilty plea
without ensuring it was knowing and voluntary, and whether the
district court erred in imposing a sentence of 200 months on Count
One. In a pro se supplemental brief, Reyes asserts that the
Government breached the plea agreement. We affirm.
Because none of the arguments raised on appeal were
presented to the district court, we review only for plain error.
In order to correct error not asserted in the district court, Reyes
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must establish “that an error occurred, that the error was plain,
and that the error affected his substantial rights.” United
States v. Olano, 507 U.S. 725, 732 (1993). Correction of plain
error established by the appellant remains, however, in the court’s
discretion, which should only be exercised if the error “seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (quoting United States v. Young, 470 U.S. 1, 15
(1985)).
Counsel suggests that the district court lacked
jurisdiction. In the discussion of this issue, however, counsel
argues that the factual basis was insufficient to demonstrate that
Reyes was involved in a drug conspiracy. Because the indictment in
this case properly alleged offenses against the laws of the United
States, the district court had jurisdiction over Reyes and the
charged crimes. See generally United States v. Cotton, 535 U.S.
625, 629-31 (2002) (discussing criminal jurisdiction of district
courts). Moreover, our review of the record leads us to conclude
that the district court correctly found that a sufficient factual
basis existed to support Reyes’s guilty plea.
Counsel next suggests that the district court accepted
Reyes’s plea without ensuring it was knowing and voluntary. Reyes
did not move in the district court to withdraw his guilty plea;
therefore, this court reviews his challenge to the adequacy of the
Fed. R. Crim. P. 11 hearing for plain error. See United States v.
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Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Prior to accepting a
guilty plea, the trial court must ensure the defendant understands
the nature of the charges against him, the mandatory minimum and
maximum sentences, and other various rights, so it is clear that
the defendant is knowingly and voluntarily entering his plea. The
court must also determine whether there is a factual basis for the
plea. Fed. R. Crim. P. 11(b)(1), (3); United States v. DeFusco,
949 F.2d 114, 116, 120 (4th Cir. 1991). Counsel does not specify
any deficiencies in the magistrate judge’s Rule 11 inquiry, and our
review of the plea hearing transcript reveals that the magistrate
judge conducted a thorough Rule 11 colloquy that assured Reyes’s
plea was made both knowingly and voluntarily.
Counsel’s final assertion is that the district court
erred in sentencing Reyes to 200 months of imprisonment on the drug
conspiracy count in light of the dismissal of the indictment
against one co-defendant and the thirty-seven month sentence
imposed on the other co-defendant, and the fact that Reyes was the
only suspect who cooperated with authorities and admitted his
involvement in the conspiracy. The statutory sentencing factors
that a district court must consider in selecting a sentence include
“the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct.” 18 U.S.C.A. § 3553(a)(6) (West 2000 & Supp.
2006). This court has held that a disparity in the length of
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sentences received by co-defendants is not a permissible ground for
a departure from the Guideline range, absent prosecutorial
misconduct such as manipulating Guideline factors. United
States v. Withers, 100 F.3d 1142, 1149 (4th Cir. 1996). Reyes does
not allege that any sentencing manipulation by the Government
created a sentencing disparity. In this case, Reyes and his co-
defendant were not similarly situated, and the disparity in their
sentences resulted from Reyes’s extensive criminal record and his
guilty plea to the firearm charge. We conclude that Reyes’s
sentence is reasonable.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We have
also considered the arguments asserted in Reyes’s pro se
supplemental brief and find them to be without merit. We therefore
affirm Reyes’s conviction and sentence. This court requires that
counsel inform Reyes, in writing, of the right to petition the
Supreme Court of the United States for further review. If Reyes
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 Reyes.
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.
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AFFIRMED
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