UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4632
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RUFINO LOREDO-MENDEZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., Senior
District Judge. (6:09-cr-00447-GRA-1)
Submitted: July 30, 2010 Decided: September 9, 2010
Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Henry C. Su, HOWREY LLP, East Palo Alto, California, for
Appellant. Maxwell B. Cauthen, III, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rufino Loredo-Mendez pled guilty to one count of being
an alien present in the United States without permission who was
previously deported after having committed an aggravated felony,
in violation of 8 U.S.C. § 1326(a), (b)(2) (2006). He was
sentenced to the low end of the properly calculated Sentencing
Guidelines, forty-one months’ imprisonment. Counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
certifying there are no meritorious issues but raising for the
court’s consideration: (1) whether the guilty plea was knowing
and voluntary; (2) whether the district court erred by not
personally addressing Loredo-Mendez; (3) whether the sentence
was procedurally unreasonable because the district court failed
to provide an individualized assessment of Loredo-Mendez’
circumstances and because the court failed to consider factors
mitigating the likelihood of recidivism; and (4) whether Loredo-
Mendez received ineffective assistance of counsel at the plea
and sentencing stages. Loredo-Mendez filed a pro se
supplemental brief claiming defense counsel was not effective
during several portions of the proceedings and he was not
properly informed of the consequences of his guilty plea. He
also claims that the sentence was unfair and he should have been
placed on probation given the favorable factors. The Government
did not file a brief.
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We have reviewed Loredo-Mendez’ change-of-plea hearing
and conclude that the district court substantially complied with
Rule 11 of the Federal Rules of Criminal Procedure. Because
Loredo-Mendez did not move in the district court to withdraw his
guilty plea, any error in the Rule 11 hearing is reviewed for
plain error. United States v. Martinez, 277 F.3d 517, 525-26
(4th Cir. 2002). To establish plain error, he “must show: (1)
an error was made; (2) the error is plain; and (3) the error
affects substantial rights.” United States v. Massenburg, 564
F.3d 337, 342-43 (4th Cir. 2009) (reviewing unpreserved Rule 11
error). “The decision to correct the error lies within [this
court’s] discretion, and [the court] exercise[s] that discretion
only if the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Id. at 343
(internal quotation marks omitted).
We note that during the change-of-plea hearing, the
district court personally addressed Loredo-Mendez and that
Loredo-Mendez was fully informed of the possible consequences of
his plea. It is clear from the record Loredo-Mendez’ guilty
plea was knowing and voluntary and any omission by the district
court during the Rule 11 hearing did not affect Loredo-Mendez’
substantial rights. We therefore affirm his conviction.
This court reviews a sentence for reasonableness,
considering both procedural and substantive reasonableness.
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Gall v. United States, 552 U.S. 38, 51 (2007). We must first
ensure that the district court did not commit any “significant
procedural error,” such as failing to properly calculate the
applicable guidelines range, failing to consider the 18 U.S.C. §
3553(a) (2006) factors, or failing to adequately explain the
sentence. Id. The district court is not required to
“robotically tick through § 3553(a)’s every subsection.” United
States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). However,
the district court “must place on the record an individualized
assessment based on the particular facts of the case before it.
This individualized assessment need not be elaborate or lengthy,
but it must provide a rationale tailored to the particular case
at hand and adequate to permit meaningful appellate review.”
United States v. Carter, 564 F.3d, 325, 330 (4th Cir. 2009)
(internal quotation marks, footnote, and citation omitted).
This is true even when the district court sentences a defendant
within the applicable guidelines range. Id.
The standard of review this court employs when
reviewing the procedural adequacy of a sentence on appeal
depends on whether the error asserted was properly preserved in
the district court. If the error is asserted for the first time
on appeal the Court simply reviews for plain error. United
States v. Lynn, 592 F.3d 572, 576-77 (4th Cir. 2010). We note
counsel did not request a particular sentence, but simply
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described some of Loredo-Mendez’ positive features. We further
note neither counsel nor Loredo-Mendez drew arguments based upon
the sentencing factors in 18 U.S.C. § 3553(a) (2006) in seeking
a sentence different from the one ultimately imposed. Lynn, 592
F.3d at 578. Thus, we review the court’s decision to sentence
Loredo-Mendez at the low end of the Sentencing Guidelines for
plain error. We conclude that the court’s very brief sentencing
statement, in which it indicated it considered the advisory
Guidelines and the statutory sentencing factors, did not violate
Loredo-Mendez’ substantial rights. See United States v.
Hernandez, 603 F.3d 267, 272 (4th Cir. 2010) (stating the
minimum a court must indicate it has considered prior to
imposing case in which there was no request for a below
Guidelines sentence). There is no indication that had counsel
argued for a sentence lower than the minimum under the
Guidelines, the court would have granted such based on the
positive factors stated by counsel. See United States v.
Washington, 404 F.3d 834, 843 (4th Cir. 2005) (substantial
rights violated when it could be shown that but for the error,
the sentence would have been less than what was ordered by the
court). Thus, we affirm Loredo-Mendez’ sentence.
Several of Loredo-Mendez’ appellate arguments concern
the effectiveness of his counsel. Such claims are generally not
cognizable on direct appeal. United States v. King, 119 F.3d
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290, 295 (4th Cir. 1997). Rather, to allow for adequate
development of the record, a defendant must bring his claim in a
28 U.S.C.A. § 2255 (West Supp. 2010) motion. See id.; United
States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An exception
exists when the record conclusively establishes ineffective
assistance. United States v. Richardson, 195 F.3d 192, 198 (4th
Cir. 1999); King, 119 F.3d at 295. In this case, the record
does not conclusively show counsel’s performance was deficient.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Loredo-Mendez’ conviction and sentence.
This court requires that counsel inform Loredo-Mendez, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Loredo-Mendez 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 Loredo-Mendez. 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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