UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4336
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO MARTINEZ,
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-00163-GRA-5)
Submitted: January 26, 2011 Decided: March 10, 2011
Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jonathan M. Milling, MILLING LAW FIRM, LLC, 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Unpublished opinions are not binding precedent in this circuit.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:
Pursuant to a written plea agreement, Antonio Martinez
pled guilty to conspiracy to distribute five kilograms or more
of cocaine, in violation of 21 U.S.C. § 846 (2006). Martinez
was sentenced to seventy months in prison. He now appeals. His
attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), raising four issues but stating
that there are no grounds for appeal. Martinez was advised of
his right to file a pro se supplemental brief, but has not filed
such a brief. We affirm.
I
Martinez contends that the district court failed to
comply with Fed. R. Crim. P. 11 and that there was not a factual
basis for the plea. However, counsel in the Anders brief
identifies no flaws in the Rule 11 proceeding, and our review of
the record discloses that the district court fully complied with
Rule 11. Further, sufficient facts supported the guilty plea.
Martinez agreed with the government’s summary of its case
against him, which demonstrated his membership in the charged
conspiracy. Further, Martinez stipulated in his plea agreement
and at the Rule 11 hearing that he was responsible for at least
five, but fewer than fifteen, kilograms of cocaine.
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II
Martinez also contends that the district court erred
because it did not specifically address the 18 U.S.C. § 3553(a)
(2006) sentencing factors when imposing sentence. Because
Martinez did not raise this claim below, our review is for plain
error. See United States v. Lynn, 592 F.3d 572, 577 (4th Cir.
2010); see also Fed. R. Crim. P. 52(b); United States v. Olano,
507 U.S. 725, 731-32 (1993) (to constitute plain error, there
must be an error that is plain and that affects the defendant’s
substantial rights). We are not required to correct a plain
error unless it “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Olano, 507 U.S. at
732.
In evaluating the sentencing court’s explanation of a
selected sentence, we have consistently held that, while the
district court must consider the statutory factors and explain
the sentence, it need not explicitly refer to § 3553(a) or
discuss every factor on the record, particularly when the court
imposes a sentence within the properly calculated advisory
Guidelines range. See, e.g., United States v. Johnson, 445 F.3d
339, 345 (4th Cir. 2006). At the same time, the district court
“must make an individualized assessment based on the facts
presented.” Gall v. United States, 552 U.S. 38, 50 (2007). The
reasons articulated by the district court for a given sentence
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need not be “couched in the precise language of § 3553(a),” so
long as the “reasons can be matched to a factor appropriate for
consideration under that statute and [are] clearly tied [to the
defendant’s] particular situation.” United States v. Moulden,
478 F.3d 652, 658 (4th Cir. 2007).
According to the presentence report, Martinez’s base
offense level was 32. See U.S. Sentencing Guidelines Manual
(USSG) § 2D1.1(c)(4) (2008). This was reduced by two levels
pursuant to USSG § 2D1.1(b)(11). He received a three-level
adjustment for acceptance of responsibility. See USSG § 3E1.1.
His total offense level was 27, and his criminal history
category was I, resulting in an advisory Guidelines range of 70-
97 months. Although Martinez was subject to a ten-year
statutory mandatory minimum, see 21 U.S.C. § 841(b)(1)(A), he
received the benefit of the safety valve provision, 18 U.S.C. §
3553(f) (2006), and his Guidelines range applied. There were no
objections to the presentence report.
At sentencing, the government recommended that
Martinez be sentenced to seventy months in prison and advised
the court that “Martinez would not challenge the reasonableness
of that sentence pursuant to any of the factors set forth at 18
U.S.C. § 3553(a).”
The district court sentenced Martinez to seventy
months in prison. The court stated that it had “calculated and
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considered the advisory guidelines and the relevant statutory
sentencing factors.” Although the court did not make the
individualized assessment required by case law, we conclude that
this did not constitute plain error, especially because the
sentence fell at the low end of the advisory Guidelines range.
III
Counsel next contends that defense counsel was
ineffective. To allow for adequate development of the record, a
defendant ordinarily must raise a claim of ineffective
assistance of counsel in a 28 U.S.C.A. § 2255 (West Supp. 2010)
motion unless it conclusively appears on the face of the record
that counsel provided inadequate assistance. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Because
ineffective assistance does not conclusively appear on the face
of the record, this claim lacks merit.
IV
In accordance with Anders, we have reviewed the entire
record for meritorious issues and have found none. We therefore
affirm. 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
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would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy 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
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