United States v. Resendiz

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4491

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

GENARO MENDOZA RESENDIZ, a/k/a Freddie,

Defendant – Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:08-cr-00366-JAB-6)

Submitted: February 22, 2011 Decided: March 22, 2011

Before MOTZ, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

George E. Crump, III, Rockingham, North Carolina, for Appellant.
Sandra Jane Hairston, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Genaro Mendoza Resendiz pled guilty pursuant to a plea

agreement to one count of conspiracy to distribute cocaine

hydrochloride, in violation of 21 U.S.C. § 846 (2006), and was

sentenced to ninety-two months in prison. Counsel has filed a

brief in accordance with Anders v. California, 386 U.S. 738

(1967), claiming that although he believes there are no

meritorious issues for appeal, it is arguable that the district

court: (i) did not comply with Fed. R. Crim. P. 11 when it

accepted Resendiz’s guilty plea because it did not inform

Resendiz of the elements the Government had to prove to

establish Resendiz’s guilt; (ii) erred when it increased

Resendiz’s offense level two levels based on his firearm

possession, pursuant to U.S. Sentencing Guidelines Manual

(“USSG”) § 2D1.1(b)(1) (2009), because Resendiz was not charged

with and did not plead guilty to firearm possession; and (iii)

imposed an unreasonable sentence because (a) it failed to fully

articulate the 18 U.S.C. § 3553(a) (2006) factors when it

imposed Resendiz’s sentence, and (b) refused to impose a variant

sentence. Resendiz has not filed a pro se supplemental brief

despite receiving notice that he may do so, and the Government

declined to file a responsive brief. Finding no error, we

affirm.

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First, we find that the district court substantially

complied with Rule 11. Because Resendiz did not move the

district court to withdraw his guilty plea, any errors in the

Rule 11 hearing are reviewed for plain error. United States v.

Martinez, 277 F.3d 517, 525-26 (4th Cir. 2002). “To establish

plain error, [Resendiz] must show 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.

2007). Even if Resendiz satisfies these requirements, the court

retains discretion to correct the error, which it should not

exercise unless the error seriously affects the fairness,

integrity or public reputation of judicial proceedings. Id.

The district court substantially complied with Rule

11’s requirements, ensuring that Resendiz’s plea was knowing and

voluntary, that he understood the rights he was giving up by

pleading guilty and the sentence he faced, and that he committed

the offense to which he was pleading guilty. Even assuming,

arguendo, that the district court erred by failing to identify

the elements of the charge to which Resendiz pled guilty, and

that the error was plain, any error did not affect Resendiz’s

substantial rights.

In the guilty plea context, a defendant meets this

burden by showing a reasonable probability that he would not

have pled guilty but for the court’s Rule 11 omissions. See

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United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009).

However, Resendiz does not suggest that he would not have pled

guilty had the Rule 11 colloquy been more exacting and, thus, he

fails to show plain error. This is especially true since

Resendiz attested in his plea agreement that the nature and

elements of the charge that the Government had to prove were

explained to him by his attorney. Accordingly, we conclude that

no error, plain or otherwise, was committed during the district

court’s acceptance of Resendiz’s guilty plea and therefore

affirm Resendiz’s conviction. See id. at 344 (“In the absence

of any evidence in the record suggesting that [the defendant]

would not have entered his plea in the absence of the error in

this case, we are left with only the existence of the error

itself.”).

We also affirm Resendiz’s sentence. After United

States v. Booker, 543 U.S. 220 (2005), this court reviews a

sentence for reasonableness, using an abuse of discretion

standard of review. Gall v. United States, 552 U.S. 38, 51

(2007). The first step in this review requires the court to

ensure that the district court committed no significant

procedural error. United States v. Evans, 526 F.3d 155, 161

(4th Cir. 2008). Procedural errors include “failing to

calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the

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§ 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence - including an explanation for any deviation from the

Guidelines range.” Gall, 552 U.S. at 51.

If, and only if, this court finds the sentence

procedurally reasonable can the court consider the substantive

reasonableness of the sentence imposed. United States v.

Carter, 564 F.3d 325, 328 (4th Cir. 2009). The court presumes

that a sentence within the Guidelines range is reasonable. See

United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). We

conclude that the district court committed no reversible error

when it imposed Resendiz’s sentence and thus hold that

Resendiz’s ninety-two-month sentence is reasonable.

A review of Resendiz’s presentence investigation

report (“PSR”) establishes that he was properly placed in

criminal history category I and that the district court

correctly attributed him with a total offense level of twenty-

nine, yielding a Guidelines range of eighty-seven to 108 months.

See USSG §§ 2D1.1, 3E1.1; ch.5, pt. A (2009). Although counsel

suggests that Resendiz’s offense level should not have been

increased two levels pursuant to USSG § 2D1.1(b)(1), we conclude

that it was appropriate for Resendiz’s offense level to be

increased based on his possession of a firearm during the

5
commission of the crime to which he plead guilty. See USSG

§ 2D1.1(b)(1), cmt. n.3 (2009).

At sentencing, the district court adopted the PSR’s

factual findings and Guidelines range calculations, and

appropriately afforded counsel an opportunity to argue for a

variant sentence, in compliance with Fed. R. Crim. P.

32(i)(3)(A), (i)(4)(A)(i). Although not raised by counsel in

the Anders brief, we note that the district court committed

error when it failed to afford Resendiz an opportunity to

allocute prior to sentencing. See Fed. R. Crim. P.

32(i)(4)(A)(ii); see also Green v. United States, 365 U.S. 301,

305 (1961) (“[T]rial judges should leave no room for doubt that

the defendant has been issued a personal invitation to speak

prior to sentencing.”). Because Resendiz did not object

regarding allocution in the district court, that error is also

subject to plain error review. See United States v. Lewis, 10

F.3d 1086, 1092 (4th Cir. 1993) (applying plain error analysis

to allocution denial).

The denial of allocution does not per se affect a

defendant’s “substantial rights.” Id. In this case, the

district court recognized that it may have neglected to ask

Resendiz if he wished to allocute prior to imposing his sentence

and eventually asked Resendiz if he wished to allocute.

Resendiz nonetheless responded that he did not, since the issues

6
he would have addressed with the district court were already

addressed by his attorney. Moreover, Resendiz does not assert

that he may have received a lesser sentence had he been allowed

to allocute sooner. Thus, because Resendiz has not established

that had he been allowed to allocute, his sentence may have been

lower, he has not established that his substantial rights were

violated and, accordingly, the district court’s error did not

amount to plain error. Cf. United States v. Cole, 27 F.3d 996,

999 (4th Cir. 1994) (recognizing plain error as a result of

district court’s failure to allow defendant to allocute where,

after issue was raised by defendant on appeal, this court

identified reasons why the district court may have imposed a

lesser sentence had defendant been allowed to address the

court).

We also discern no reversible error in the district

court’s pronouncement of Resendiz’s sentence. In evaluating a

district court’s explanation of a selected sentence, this court

has held that, although a district court must consider the

statutory factors and explain its sentence, it need not

explicitly reference § 3553(a) or discuss every single factor on

the record. United States v. Johnson, 445 F.3d 339, 345 (4th

Cir. 2006). However, the district court still “must make an

individualized assessment based on the facts presented,” and

apply the “relevant § 3553(a) factors to the specific

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circumstances of the case before it.” Carter, 564 F.3d at 328

(quotation marks and emphasis omitted).

The court must also “state in open court the

particular reasons supporting its chosen sentence” and “set

forth enough to satisfy” this court that it has “considered the

parties’ arguments and has a reasoned basis for exercising [its]

own legal decisionmaking authority.” Id. (quotation marks

omitted). In other words, the reasons articulated by the

district court for a given sentence need not be “couched in the

precise language of § 3553(a)” as 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).

“By drawing arguments from § 3553 for a sentence

different than the one ultimately imposed, [Resendiz]

sufficiently alert[ed] the district court of its responsibility

to render an individualized explanation addressing those

arguments, and thus preserve[d] [his] claim.” United States v.

Lynn, 592 F.3d 572, 578 (4th Cir. 2010). Accordingly, we review

the district court’s explanation for Resendiz’s sentence under

the abuse of discretion standard. See id. at 576; cf. United

States v. Hernandez, 603 F.3d 267, 270 (4th Cir. 2010)

(reviewing claim of procedural unreasonableness for plain error

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because defendant did not argue for a sentence different from

the sentence that he received).

Prior to imposing Resendiz’s sentence, the district

court explained why it rejected counsel’s argument for a variant

sentence; namely, it did not agree that Resendiz’s conduct was

similar to the conduct of his co-conspirator to warrant the

variance. In doing so, the district court thoroughly addressed

the nature and circumstances of Resendiz’s offense.

Although the district court did not explicitly address

counsel’s arguments regarding his family, work history and lack

of criminal history prior to imposing sentence, the district

court clearly listened to counsel’s arguments and did state that

it considered Resendiz’s advisory Guidelines range, which

included Resendiz’s category I criminal history, but found that

a sentence in the middle of that range was appropriate. Having

expressly indicated that it considered the Guidelines and the

nature and circumstances of Resendiz’s crime in fashioning an

appropriate sentence, the district court undertook a sufficient

§ 3553(a) analysis in sentencing Resendiz. Cf. Johnson, 445

F.3d at 345 (recognizing that “[m]any of the § 3553(a) factors

are already incorporated into any Guidelines determination, and

the § 3553(a) factors can themselves overlap.”). We conclude

that the district court did not commit “significant procedural

error” in failing to explicitly mention § 3553(a) or more

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thoroughly explain Resendiz’s sentence. See Lynn, 592 F.3d at

575.

Having discerned no procedural sentencing error, we

presume Resendiz’s within-Guidelines sentence to be correct.

See Allen, 491 F.3d at 193. Although counsel suggests that

Resendiz’s sentence is substantively unreasonable because it is

not the variant sentence he requested, counsel’s mere suggestion

is insufficient to overcome the presumption this court affords

the within-Guidelines sentence. Accordingly, we affirm

Resendiz’s ninety-two-month sentence.

In accordance with Anders, we have reviewed the 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 Resendiz, in writing, of the right

to petition the Supreme Court of the United States for further

review. If Resendiz requests that a petition be filed, but

counsel believes that such a petition would be frivolous,

counsel may move in this court for leave to withdraw from

representation. Counsel’s motion must state that a copy thereof

was served on Resendiz. 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