UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5199
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEONICIO GARCIA, a/k/a Nicho, a/k/a Leno, a/k/a Tio, a/k/a
Leo, a/k/a Valente Garcia,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:06-cr-00797-JFA-1)
Submitted: July 22, 2010 Decided: August 3, 2010
Before WILKINSON, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Herbert W. Louthian, Jr., LOUTHIAN LAW FIRM, P.A., Columbia,
South Carolina, for Appellant. Jane Barrett Taylor, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leonicio Garcia appeals his conviction and 235 month
sentence for conspiracy to possess with intent to distribute and
distribute heroin and cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1), 846 (2006) (Count 1); unlawful entry into
the United States, in violation of 8 U.S.C. § 1326(a) (2006)
(Count 99); and conspiracy to commit money laundering, in
violation of 18 U.S.C. § 1956(a)(1), (h) (2006) (Count 104).
Appellate counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), contending there are no
meritorious issues on appeal, but questioning whether Garcia’s
guilty plea was valid and whether the district court erred in
applying a two level enhancement for possession of a firearm
under U.S. Sentencing Guidelines Manual (“USSG”) § 2D1.1(b)(1)
(2008). Garcia has filed a pro se supplemental brief, asserting
that his guilty plea was invalid, as his attorney advised him to
admit to conduct he did not commit, and that his attorney was
ineffective in advising him to stipulate to being a leader in a
conspiracy, telling him to agree to everything that was said
during sentencing, failing to argue more vigorously for a
greater downward departure, and misleading him through threats
and duress into entering a guilty plea. The Government has
declined to file a brief. We affirm.
2
Because Garcia failed to challenge the validity of his
guilty plea before the district court, our review is for plain
error. United States v. Martinez, 277 F.3d 517, 525-27 (4th
Cir. 2002). “To establish plain error, [Garcia] must
demonstrate that an error occurred, that the error was plain,
and that the error affected his substantial rights.” United
States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2009). Even if
Garcia makes such a showing, we will not recognize the error
unless it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id.
Prior to accepting a guilty plea, the district court,
through colloquy with the defendant in open court, must inform
the defendant of, and determine that the defendant understands,
the nature of the charges to which the plea is offered, any
mandatory minimum penalty, the maximum possible penalty he
faces, and the various rights he is relinquishing by pleading
guilty. Fed. R. Crim. P. 11(b). In addition, the court must
ascertain that the plea is voluntary and that there is a factual
basis for the plea. Fed. R. Crim. P. 11(b)(2), (3). After
reviewing the record, we find that Garcia’s guilty plea was
knowingly and voluntarily entered, in compliance with Rule 11.
Accordingly, we find that his guilty plea was valid, and this
issue is without merit.
3
Next, Garcia’s counsel contends that the district
court erred in enhancing his sentence due to his possession of a
firearm, pursuant to USSG § 2D1.1(b)(1). However, because
Garcia stipulated to the applicability of such an enhancement in
his plea agreement, this issue is without merit.
In accordance with Anders, we have reviewed the record
and found no meritorious issues on appeal. Additionally, we
have reviewed the claims raised in Garcia’s supplemental brief
and found them to be unavailing. Therefore, we affirm the
judgment of the district court. 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 expressed
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
4