UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5078
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MAURILIO PRIETO-RUBI, Maurilio Prieto-Rubio,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (3:06-cr-00017-nkm-1)
Submitted: September 29, 2008 Decided: January 15, 2009
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marc Seguinót, SEGUINÓT & ASSOCIATES, PC, McLean, Virginia, for
Appellant. Julia C. Dudley, Acting United States Attorney, Jean B.
Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Maurilio Prieto-Rubi appeals his conviction and 194-month
sentence for conspiring to distribute fifty grams or more of
methamphetamine, in violation of 21 U.S.C. § 846 (2000).
Prieto-Rubi contends the court erred in accepting his guilty plea
without first ascertaining whether he had been advised of his right
to contact the Mexican consulate under Article 36 of the Vienna
Convention on Consular Relations. He also contends the district
court erred in refusing to consider his status as a deportable
alien as a basis for varying from the Sentencing Guidelines range.
We affirm.
Prieto-Rubi asks this court to vacate his guilty plea and
remand for an “evidentiary hearing to determine whether the failure
of [notification] under Article 36” violated his rights. Because
Prieto-Rubi did not raise this issue below, his claim is reviewed
for plain error. See Fed. R. Crim. P. 52(b). Prieto-Rubi must
show: (1) there was error; (2) the error was plain; and (3) the
error affected his substantial rights. United States v. Olano, 507
U.S. 725, 732-34 (1993). Even if all three of these elements are
present, we may not correct the error unless it “seriously affects
the fairness, integrity or public reputation of judicial
proceedings.” Id. at 736 (internal quotation marks, alterations
and citation omitted).
2
Article 36(b) of the Vienna Convention provides that upon
arrest, a foreign national has the right to contact the consular
post of his home country, and that the arresting authorities must
inform the detainee of that right. In Sanchez-Llamas v. Oregon,
548 U.S. 331, 343, 350 (2006), the Supreme Court held that,
assuming the Vienna Convention creates enforceable individual
rights, suppression of incriminating evidence via the exclusionary
rule is not an appropriate remedy for its violation. Just as
violation of Article 36 does not warrant exclusion of incriminating
evidence, it does not require vacating Prieto-Rubi’s conviction.
See Medellin v. Texas, 128 S. Ct. 1346, 1360-61 (holding treaties
without self-executing provisions do not constitute “directly
enforceable federal law”).*
Prieto-Rubi also argues that his status as a deportable
alien is a permissible grounds for variance and the district court
erred in its refusal to consider varying the sentence on this
basis. Our review of the record leads us to conclude, however,
*
Prieto-Rubi also refers to the decision of the International
Court of Justice (“ICJ”) in the Case Concerning Avena and other
Mexican Nationals (Mex. v. U.S.), 2004 I. C. J. 12 (Mar. 31), in
which the ICJ held that the United States had violated the Vienna
Convention by failing to inform 51 named Mexican nationals of their
Vienna Convention rights and that those individuals were entitled
to review and reconsideration of their U.S. state-court
convictions. The international court’s decision in the Avena case
does not, however, require reversal of Prieto-Rubi’s conviction,
because the ICJ’s decision is not “directly enforceable federal
law.” Medellin, 128 S. Ct. at 1353.
3
that the court did consider, but was unpersuaded, that the
deportation issue warranted a departure.
In any event, Prieto-Rubi cannot establish that his
sentence is unreasonable. This court will affirm a sentence so
long as it is within the statutorily prescribed range and is
reasonable. United States v. Hughes, 401 F.3d 540, 546-47 (4th
Cir. 2005). We review a district court’s sentence for
reasonableness under an abuse-of-discretion standard. Gall v.
United States, 128 S. Ct. 586, 597 (2007); see also United
States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). When
sentencing a defendant, a district court must: (1) properly
calculate the Guidelines range; (2) determine whether a sentence
within that range serves the factors set out in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2008); (3) implement mandatory
statutory limitations; and (4) explain its reasons for selecting a
sentence. Pauley, 511 F.3d at 473. “[A] sentence within the
proper advisory Guidelines range is presumptively reasonable.”
United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006); see
Rita v. United States, 127 S. Ct. 2456, 2462, 2465 (2007)
(permitting appellate courts to afford a presumption of
reasonableness to a within-Guidelines sentence). Prieto-Rubi’s
194-month sentence is within the Guidelines range and below the
statutory maximum. Neither Prieto-Rubi nor the record suggests any
4
information to rebut the presumption that his sentence was
reasonable.
Accordingly, we affirm Prieto-Rubi’s conviction and
sentence. 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