UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4321
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANCISCO DURAN AVILA, a/k/a J. Trinidad
Cervantez-R,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:06-cr-00270-JAB)
Submitted: September 13, 2007 Decided: September 18, 2007
Before GREGORY and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Gregory Davis, Senior
Litigator, Winston-Salem, North Carolina, for Appellant. Lisa Blue
Boggs, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Francisco Duran Avila appeals from his sentence imposed
following his guilty plea to possession of cocaine with the intent
to distribute and possession of a firearm during a drug trafficking
crime. Avila’s attorney filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), challenging the reasonableness of
the sentence. Avila filed a pro se brief arguing that his sentence
was in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000).
Our review of the record discloses no reversible error;
accordingly, we affirm Avila’s conviction and sentence.
We find that Avila’s guilty plea was knowingly and
voluntarily entered after a thorough hearing pursuant to Fed. R.
Crim. P. 11. Avila was properly advised of his rights, the
offenses charged, and the mandatory minimum and maximum sentences
for the offenses. 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 United States v.
DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991).
Avila contends that the district court’s finding that he
was accountable for the equivalent of nine kilograms of cocaine
resulted in an increase in his sentence beyond the maximum
authorized by the charges in the indictment. We note that the
judicial fact finding of drug quantities used to determine Avila’s
sentence under the advisory guidelines calculation does not
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implicate Apprendi. See Apprendi v. New Jersey, 530 U.S. at 490
(“Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt.”). The statutory maximum sentence for the drug trafficking
offense was forty years, and Avila’s sentence of eighty-seven
months on that charge is well below the statutory maximum.
We find that the district court properly applied the
Sentencing Guidelines and considered the relevant sentencing
factors before imposing Avila’s sentence. 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2007); see United States v. Hughes, 401 F.3d
540, 546-47 (4th Cir. 2005). Additionally, we find that the
sentence imposed—which was within the properly calculated guideline
range—was reasonable. United States v. Johnson, 445 F.3d 339, 341
(4th Cir. 2006) (“[A] sentence within the proper advisory
Guidelines range is presumptively reasonable.”); see Rita v. United
States, 127 S. Ct. 2456, 2462-69 (2007) (upholding application of
rebuttable presumption of reasonableness to within-guidelines
sentence). Accordingly, we affirm Avila’s sentence.
As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. We therefore
affirm Avila’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
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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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