UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4466
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
OMAR LOPEZ-VERDIN,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton
Tilley, Jr., Senior District Judge. (1:08-cr-00191-NCT-1)
Submitted: March 23, 2010 Decided: April 15, 2010
Before GREGORY, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Stacey D. Rubain, QUANDER & RUBAIN, P.A., Winston-Salem, 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Unpublished opinions are not binding precedent in this circuit.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:
Omar Lopez-Verdin pled guilty, pursuant to a plea
agreement, to one count of illegal reentry of an aggravated
felon after removal, in violation of 8 U.S.C. § 1326(a), (b)(2)
(2006). The district court sentenced Lopez-Verdin to 78 months’
imprisonment. Lopez-Verdin now appeals. Counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that the appeal raises no meritorious grounds but
questioning whether the 78-month sentence is reasonable.
Lopez-Verdin was informed of his right to file a pro se
supplemental brief but has not done so, and the Government
declined to file a brief. We affirm.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
review. Our review of the transcript of the plea hearing leads
us to conclude that the district court substantially complied
with the mandates of Fed. R. Crim. P. 11 in accepting
Lopez-Verdin’s guilty plea and that Lopez-Verdin’s substantial
rights were not infringed. Critically, the transcript reveals
that the district court ensured that the plea was supported by
an independent factual basis and that Lopez-Verdin entered the
plea knowingly and voluntarily with an understanding of the
attendant consequences. See United States v. DeFusco, 949 F.2d
114, 116, 119-20 (4th Cir. 1991).
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Turning to Lopez-Verdin’s sentence, we review it under
an abuse-of-discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007). In conducting this review, we first examine
the sentence for “significant procedural error, such as failing
to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
[18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Id. “When rendering a sentence,
the district court must make an individualized assessment based
on the facts presented,” applying the “relevant § 3553(a)
factors to the specific circumstances” of the case and the
defendant, and “must state in open court the particular reasons
supporting its chosen sentence.” United States v. Carter,
564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and
emphasis omitted).
If the sentence is free of procedural error, we then
consider the substantive reasonableness of the sentence,
“tak[ing] into account the totality of the circumstances.”
Gall, 552 U.S. at 51. If the sentence is within the appropriate
Guidelines range, this court applies a presumption on appeal
that the sentence is reasonable. See United States v. Go, 517
F.3d 216, 218 (4th Cir. 2008).
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Here, the district court correctly calculated the
advisory Guidelines range and heard argument from the parties on
the appropriate sentence and allocution from Lopez-Verdin. In
declining to grant Lopez-Verdin’s request for a downward
departure on the basis of cultural assimilation, the court
explained that such departure was not appropriate in light of
Lopez-Verdin’s age upon entry to the United States, criminal
record, and knowledge that his return to the United States after
deportation was prohibited. Further, neither counsel nor Lopez-
Verdin offers any grounds to rebut the presumption that the
within-Guidelines sentence is reasonable. Thus, we conclude
that the district court did not abuse its discretion in
sentencing Lopez-Verdin.
We therefore affirm the district court’s judgment.
This court requires that counsel inform Lopez-Verdin, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Lopez-Verdin 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 Lopez-Verdin.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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