UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4187
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN SALAZAR-MORENO,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:07-cr-00648-RBH-1)
Submitted: May 22, 2008 Decided: May 28, 2008
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. Reginald I. Lloyd, Assistant United
States Attorney, Columbia, South Carolina, Arthur Bradley Parham,
OFFICE OF THE UNITED STATES ATTORNEY, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juan Salazar-Moreno pled guilty pursuant to a plea
agreement to assaulting a federal corrections officer in violation
of 18 U.S.C. § 111(a)(1) (2000), and was sentenced to thirty-three
months in prison. Counsel for Salazar-Moreno has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), alleging
that he has found no meritorious issues for appeal. Counsel
acknowledges that the district court complied with Fed. R. Crim. P.
11 at the plea hearing and did not err in refusing to reduce
Salazar-Moreno’s Guidelines range by three for acceptance of
responsibility pursuant to U.S. Sentencing Guidelines (“USSG”)
§ 3B1.1 (2007). Salazar-Moreno has filed a pro se supplemental
brief claiming that the district court should have reduced his
Guidelines range pursuant to USSG § 3B1.1 because he was never
charged with or found guilty of the post-plea conduct of which he
was accused. The Government has declined to file a responding
brief. Finding no error, we affirm the district court’s judgment.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
review. After a thorough Rule 11 hearing at which Salazar-Moreno
admitted his guilt and the voluntariness of his plea, the district
court adopted the findings contained in the presentence
investigation report (“PSR”), considered the 18 U.S.C. § 3553(a)
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(2000) factors, and sentenced Salazar-Moreno to the low end of a
properly calculated Guidelines range.
Salazar-Moreno's assertions to the contrary, we find that
the district court did not clearly err when it accepted unrefuted
information in the PSR establishing that after Salazar-Moreno
entered his guilty plea, he engaged in similar conduct toward
another prison guard. Accordingly, it was not error for the
district court to refuse to apply a three-point reduction to
Salazar-Moreno’s Guidelines range; the Guidelines’ commentary
explicitly provides that a district court may consider whether the
defendant withdrew from criminal conduct when determining whether
to apply the three-point reduction for acceptance of
responsibility. See USSG § 3E1.1, cmt. n.1 (2007).
Accordingly, we affirm the judgment of the district
court. This court requires that counsel inform Salazar-Moreno in
writing of his right to petition the Supreme Court of the United
States for further review. If Salazar-Moreno requests that a
petition be filed, but counsel believes that such a petition would
be frivolous, then counsel may motion this court for leave to
withdraw from representation. Counsel's motion must state that a
copy thereof was served on Salazar-Moreno. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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