UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4859
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARNOLDO MORENO-SEPULVEDA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry F. Floyd, District Judge.
(8:09-cr-01203-HFF-1)
Submitted: March 23, 2011 Decided: March 28, 2011
Before DUNCAN, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James B. Loggins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Elizabeth Jean Howard, Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Arnoldo Moreno-Sepulveda pled guilty to assault on an
inmate with the intent to cause bodily harm, in violation of 18
U.S.C. §§ 113(a), 7(3) (2006), and the district court sentenced
him to a seventy-two-month within-Guidelines sentence. On
appeal, counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal but asking the court to review the
reasonableness of the sentence. Moreno-Sepulveda has filed a
pro se supplemental brief. * We affirm.
Counsel questions whether the sentence is reasonable,
but he points to no specific error. We review a sentence for
reasonableness, applying an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007). This review
requires appellate consideration of both the procedural and
substantive reasonableness of a sentence. Id. In determining
the procedural reasonableness of a sentence, we consider whether
*
In his pro se brief, Moreno-Sepulveda asserts that he was
placed in double jeopardy because he was subject to prison
discipline for the assault that led to his conviction and that
the probation officer allegedly failed to interview him for the
presentence report. We have reviewed these claims and conclude
that they are without merit. To the extent Moreno-Sepulveda
asserts that counsel provided ineffective assistance, we decline
to address this claim on direct appeal. See United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999) (providing
standard); United States v. King, 119 F.3d 290, 295 (4th Cir.
1997) (same).
2
the district court properly calculated the defendant’s advisory
Guidelines range, considered the 18 U.S.C. § 3553(a) (2006)
factors, analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Gall, 552 U.S. at
51; see United States v. Johnson, 587 F.3d 625, 639 (4th Cir.
2009), cert. denied, 130 S. Ct. 2128 (2010); United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009). With these standards
in mind, we have reviewed the record on appeal and conclude that
Moreno-Sepulveda’s sentence is procedurally reasonable.
We next assess the substantive reasonableness of the
sentence, “taking into account the ‘totality of the
circumstances, including the extent of any variance from the
Guidelines range.’” United States v. Pauley, 511 F.3d 468, 473
(4th Cir. 2007) (quoting Gall, 552 U.S. at 51). Where, as here,
a defendant’s sentence falls within the Guidelines range, the
district court’s decision enjoys a presumption of
reasonableness. United States v. Allen, 491 F.3d 178, 193 (4th
Cir. 2007) (“A sentence within the proper Sentencing Guidelines
range is presumptively reasonable.”). Because Moreno-Sepulveda
fails to rebut the presumption of reasonableness, we conclude
that his sentence is substantively reasonable and that the
district court did not abuse its discretion in imposing a
seventy-two-month sentence.
3
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Moreno-Sepulveda, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Moreno-Sepulveda 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 Moreno-Sepulveda.
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
4