UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4545
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAIME SALAZAR GALLEGOS, a/k/a Flaco,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (4:05-cr-00092-H)
Submitted: January 31, 2007 Decided: February 21, 2007
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Anne Margaret Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jaime Salazar Gallegos pled guilty pursuant to a plea
agreement to one count of conspiracy to distribute and possess with
intent to distribute more than 500 grams of cocaine, in violation
of 21 U.S.C. §§ 841(a)(1), 846 (2000). Because the district court
determined Gallegos was responsible for 2.5 kilograms of cocaine
powder, Gallegos was sentenced to 100 months’ imprisonment. We
find no error and affirm Gallegos’s conviction and sentence.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967). He first asserts that there is “a
genuine issue about whether the appeal waiver in the plea agreement
is knowing and intelligent.” Counsel next questions whether the
magistrate judge fully complied with the requirements of Rule 11.1
Finally, counsel contends the district court violated Blakely v.
Washington, 542 U.S. 296 (2004), because it sentenced Gallegos
based on a drug weight that was not admitted, alleged in the
indictment, nor found by jury beyond a reasonable doubt. However,
counsel concluded this argument was “foreclosed” by United
States v. Booker, 543 U.S. 220 (2005).2
1
Gallegos consented to enter his plea before a magistrate
judge pursuant to 28 U.S.C. § 636 (2000).
2
As Gallegos was sentenced post-Booker, and Gallegos concedes
there was not a Sixth Amendment violation under Booker, we do not
address this issue.
- 2 -
In his pro se supplemental brief, Gallegos joins his
counsel’s assertion that his appellate waiver was not knowingly and
intelligently made. Additionally, Gallegos contends the district
court erred by finding the drug weight by a preponderance of the
evidence rather than beyond a reasonable doubt. Gallegos further
contends his sentence is procedurally unreasonable because the
district court failed to make specific findings on the record. The
Government elected not to file a responsive brief.
Gallegos first challenges the voluntariness of the
appellate waiver provision in his plea agreement. However, because
the Government has not sought to enforce the waiver, we have not
considered it. Accordingly, we need not address whether Gallegos’s
agreement to the appellate waiver was knowing, intelligent, or
voluntary.
Next, Gallegos contends the magistrate judge did not
fully comply with the requirements of Rule 11. Because Gallegos
did not seek to withdraw his guilty plea in the district court, we
review any alleged Rule 11 error for plain error. United States v.
Martinez, 277 F.3d 517, 524-26 (4th Cir. 2002). To establish plain
error, Gallegos must show that an error occurred, that the error
was plain, and that the error affected his substantial rights.
United States v. White, 405 F.3d 208, 215 (4th Cir.), cert. denied,
126 S. Ct. 668 (2005). We have reviewed the record and find no
error.
- 3 -
Gallegos next contends the district court erred by
sentencing him based on facts that were not proven beyond a
reasonable doubt. However, after Booker, sentencing courts are
still required to calculate and consider the guideline range
prescribed thereby as well as the factors set forth in 18 U.S.C.
§ 3553(a) (2000). United States v. Hughes, 401 F.3d 540, 546 (4th
Cir. 2005). This court has previously noted that sentencing
factors should continue to be evaluated based on the preponderance
of the evidence. United States v. Morris, 429 F.3d 65, 72 (4th
Cir. 2005). As Gallegos’s sentence was imposed post-Booker, the
district court’s use of a preponderance of the evidence standard
was proper.
Further, in imposing Gallegos’s sentence, the district
court stated that it had considered the advisory guideline range,
the relevant § 3553(a) factors, and Booker. The court determined
that a sentence at the low end of the guideline range was
appropriate as it was “a significant sentence.” Though Gallegos
asserts in his pro se supplemental brief that his sentence is
procedurally unreasonable because the district court failed to make
specific findings, and the court concededly failed to explicitly
discuss the various § 3553(a) factors on the record, we conclude it
does not render Gallegos’s sentence unreasonable. The district
court satisfied its obligations by explicitly stating at the
sentencing hearing that it had considered both the advisory
- 4 -
guidelines as well as the relevant factors set forth in § 3553(a).
See United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006)
(“Requiring district courts to address each factor on the record
would . . . be an exercise in unproductive repetition that would
invite flyspecking on appeal.”).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly we affirm Gallegos’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 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
- 5 -