UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4175
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ARTURO LOPEZ-JUAREZ,
Defendant - Appellant.
No. 06-4176
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALFREDO GUTIERREZ-ASPEITIA,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:05-cr-00024)
Submitted: February 15, 2007 Decided: February 20, 2007
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
George A. Young, Galveston, Texas; Ross Hall Richardson, LAW
OFFICES OF ROSS HALL RICHARDSON, Charlotte, North Carolina, for
Appellants. Kevin Zolot, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Arturo Lopez-Juarez and Alfredo Gutierrez-Aspeitia
pleaded guilty, pursuant to a plea agreement, to one count of
conspiracy to possess with intent to distribute five kilograms or
more of cocaine, in violation of 21 U.S.C.A. §§ 846, 841(a)(1),
(b)(1)(A) (West 1999 & Supp. 2006). Gutierrez-Aspeitia also
pleaded guilty to 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). In their plea
agreements, the appellants stipulated that the amount of cocaine
that was known to or reasonably foreseeable by them was in excess
of five kilograms, and that a base offense level of thirty-two
under the Sentencing Guidelines1 applied to the conspiracy charge.
After a reduction for acceptance of responsibility, appellants’
total offense level on the conspiracy charge was twenty-nine.
Lopez-Juarez’s prior criminal activity placed him in criminal
history category II, which resulted in a sentencing range of 120 to
121 months. Gutierrez-Aspeitia was in criminal history category I,
with a sentencing range of 120 months on the drug conspiracy and a
consecutive sixty months on the firearm charge.2 Before
1
U.S. Sentencing Guidelines Manual (USSG) (2004).
2
Both appellants were subject to a statutory minimum sentence
of ten years on the drug conspiracy count based on the quantity of
(continued...)
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sentencing, the Government moved for a departure from the statutory
minimum sentence in Gutierrez-Aspeitia’s case, which the district
court granted. The court sentenced Lopez-Juarez to 120 months of
imprisonment, and sentenced Gutierrez-Aspeitia to a total of 144
months after departing from the statutory minimum of 180 months.
Appellants timely appealed.
On appeal, counsel filed an Anders3 brief, in which they
state there are no meritorious issues for appeal, but question
whether the district court complied with Fed. R. Crim. P. 11 in
accepting the appellants’ guilty pleas, and whether the sentences
imposed were unreasonable or otherwise in violation of law.
Appellants were advised of their right to file a pro se
supplemental brief, but have not filed a brief. We affirm.
Appellants did not move in the district court to withdraw
their guilty pleas, therefore this court reviews their challenge to
the adequacy of the Rule 11 hearing for plain error. See United
States v. 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
2
(...continued)
cocaine involved. 21 U.S.C.A. § 841(b)(1)(A). Gutierrez-Aspeitia
was also subject to a mandatory consecutive term of five years of
imprisonment on the firearm charge. 18 U.S.C.A. § 924(c)(1)(A)(i).
3
Anders v. California, 386 U.S. 738 (1967).
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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
do not specify any deficiencies in the magistrate judges’ Rule 11
inquiries, and our review of the plea hearing transcripts reveals
that the magistrate judges conducted a thorough Rule 11 colloquy
that assured appellants’ pleas were made both knowingly and
voluntarily.
We review a district court’s sentence for reasonableness.
United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005).
“Consistent with the remedial scheme set forth in United States v.
Booker, 543 U.S. 220 (2005), a district court shall first calculate
(after making the appropriate findings of fact) the range
prescribed by the guidelines.” Id. at 546. Counsel do not assert
that the district court erred in determining the applicable
Guideline range, and appellants’ offense level was determined based
on the stipulation in the plea agreement. Next, the district court
must consider the Guideline range in conjunction with other
relevant factors under the Guidelines and § 3553(a), and impose a
sentence. “A sentence within the proper advisory Guidelines range
is presumptively reasonable.” United States v. Johnson, 445 F.3d
339, 341-42 (4th Cir. 2006). If a court imposes a sentence outside
the Guideline range, the court must state its reasons for doing so.
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Hughes, 401 F.3d at 546. The sentence must be “within the
statutorily prescribed range and . . . reasonable.” Id. at 546-47
(citations omitted). In this case, appellants’ sentences were
governed by statutory minimums. Lopez-Juarez was sentenced to the
statutory minimum term of imprisonment, and Gutierrez-Aspeitia
received relief from the statutory minimums as a result of his
substantial assistance to the government. We conclude that
appellants’ sentences are reasonable.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm appellants’ convictions and sentences. This court
requires that counsel inform appellants, in writing, of the right
to petition the Supreme Court of the United States for further
review. If either appellant 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 appellant.
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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