UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4073
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FRANCISCO LOPEZ, a/k/a Francisco Gonzalez,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. G. Ross Anderson, Jr., Senior
District Judge. (8:08-cr-00628-GRA-13)
Submitted: December 20, 2010 Decided: January 21, 2011
Before DUNCAN and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Joshua Snow Kendrick, JOSHUA SNOW KENDRICK, PC, Columbia, South
Carolina, for Appellant. Alan Lance Crick, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Francisco Lopez appeals the district court’s judgment
imposing a sentence of 51 months in prison and 5 years of
supervised release after he pled guilty to conspiracy to
distribute methamphetamine in violation of 21 U.S.C. § 846
(2006). Lopez’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
issues of whether the district court complied with Fed. R. Crim.
P. 11 when accepting Lopez’s guilty plea and whether his
sentence is reasonable. Lopez was notified of his right to file
a pro se supplemental brief but has not done so. We affirm.
Appellate counsel first questions whether the district
court complied with Rule 11 when accepting Lopez’s guilty plea,
but he concludes the record reveals no error and the district
complied with the rule. Because Lopez did not move in the
district court to withdraw his guilty plea or otherwise raise
Rule 11 error, we review the Rule 11 colloquy for plain error.
See United States v. Vonn, 535 U.S. 55, 59 (2002); United States
v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Thus, it is
Lopez’s burden to show (1) error; (2) that is plain; (3)
affecting his substantial rights; and (4) that we should
exercise our discretion to notice the error. See Martinez,
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277 F.3d at 529. We have reviewed the record and conclude that
Lopez has shown no plain error affecting substantial rights.
Appellate counsel next questions whether Lopez’s
sentence is reasonable, but he concludes there is no procedural
error and the sentence is substantively reasonable. We review a
sentence under a deferential abuse-of-discretion standard.
Gall v. United States, 552 U.S. 38, 51 (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, failing to consider the
18 U.S.C. § 3553(a) (2006) factors, or failing to adequately
explain the sentence. United States v. Carter, 564 F.3d 325,
328 (4th Cir. 2009). We then consider the substantive
reasonableness of the sentence imposed, taking into account the
totality of the circumstances and giving “due deference to the
district court’s decision.” Gall, 552 U.S. at 51.
We have reviewed the record and conclude that the
district court did not err or abuse its discretion in sentencing
Lopez, and his sentence is both procedurally and substantively
reasonable. In accordance with the parties’ stipulation that
Lopez was responsible for at least 1.5 kilograms but less than 5
kilograms of methamphetamine, the probation officer determined
his base offense level was 34 under U.S. Sentencing Guidelines
Manual § 2D1.1 (2008). Since he met the requirements of the
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“safety valve” provisions, see 18 U.S.C. § 3553(f) (2006); USSG
§ 5C1.2, his offense level was reduced two levels under USSG
§ 2D1.1(b)(11) and the district court was permitted to sentence
him below the mandatory minimum. With a three-level reduction
for acceptance of responsibility and criminal history category
I, his guideline range was 87 to 108 months. The Government
moved for a sentence reduction under 18 U.S.C. § 3553(e) (2006);
USSG § 5K1.1, and recommended that Lopez’s offense level be
reduced from 29 to 24, resulting in a recommended sentencing
range of 51 to 63 months. Lopez agreed with the calculations
and requested that the court go along with the Government’s
recommendation. After hearing argument from counsel and
allocution from Lopez, the district court granted the request
and sentenced Lopez at the bottom of the recommended range.
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.
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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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