United States v. Penafiel

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4455

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

ROGELIO GARCIA PENAFIEL,

Defendant – Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:07-cr-00227-NCT-3)

Submitted: January 9, 2009 Decided: February 24, 2009

Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

C. Scott Holmes, BROCK, PAYNE & MEECE, PA, Durham, North
Carolina, for Appellant. Terry Michael Meinecke, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Rogelio Garcia Penafiel appeals his conviction and the

district court’s judgment imposing a sentence of sixty-five

months in prison and four years of supervised release after

pleading guilty to conspiracy to distribute five hundred grams

or more of cocaine hydrochloride, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(B) (2006). On appeal, Penafiel’s attorney

has filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), asserting, in his opinion, there are no meritorious

grounds for appeal but raising the issue of whether the district

court erred by imposing an unreasonable sentence. Penafiel was

notified of his right to file a pro se supplemental brief, but

he has not done so. Finding no error, we affirm.

We review Penafiel’s sentence for abuse of discretion.

See Gall v. United States, 128 S. Ct. 586, 590 (2007). The

first step in this review requires us to ensure that the

district court committed no significant procedural error, such

as improperly calculating the guideline range. United States

v. Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied,

128 S. Ct. 2525 (2008). We then consider the substantive

reasonableness of the sentence imposed, taking into account the

totality of the circumstances. Gall, 128 S. Ct. at 597. When

reviewing a sentence on appeal, we presume that a sentence

2
within a properly calculated guideline range is reasonable.

United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).

We have reviewed the record and conclude that the

district court did not err or abuse its discretion in sentencing

Penafiel, and his sentence is procedurally and substantively

reasonable. The district court correctly found his guideline

range was sixty to seventy-one months and reasonably concluded a

sentence in the middle of the range was appropriate in his case.

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. We therefore affirm the district court’s judgment.

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 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