UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4874
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NICOLAS MORALES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry F. Floyd, District Judge.
(8:07-cr-00960-HFF-13)
Submitted: June 30, 2011 Decided: July 5, 2011
Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Guy J. Vitetta, Charleston, South Carolina, for Appellant.
Leesa Washington, Assistant United States Attorney, Greenville,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nicolas Morales pled guilty to Count 1 of the second
superseding indictment (sealed) to conspiracy to possess with
intent to distribute five kilograms or more of cocaine, fifty
grams or more of cocaine base, and 500 grams or more of mixture
or substance containing a detectable amount of methamphetamine.
He was sentenced to 120 months of imprisonment, the bottom of
his advisory Sentencing Guidelines range. On appeal counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting there are no meritorious grounds for appeal
but questioning whether the district court erred at sentencing
by denying his objections to the amount of drug quantity
attributed to him and for not sentencing Morales under the
“safety valve” provision of the Sentencing Guidelines. See U.S.
Sentencing Guidelines Manual (“USSG”) § 5C1.2 (2008). Morales
was informed of his right to file a pro se supplemental brief,
but did not do so. For the reasons that follow, we affirm.
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
2
range or failing to consider the 18 U.S.C. § 3553(a) (2006)
factors. United States v. Carter, 564 F.3d 325, 328 (4th Cir.
2009). The district court must make an individualized
assessment based on the facts presented by applying the relevant
§ 3553(a) factors to the circumstances of the case. Gall, 552
U.S. at 51. The court then considers the substantive
reasonableness of the sentence, taking into account the totality
of the circumstances. Id.
Here, we find no procedural or substantive error in
the district court’s sentence. Moreover, Morales’ objections to
the quantity of drugs for which he was found accountable at
sentencing fail to assist him on appeal, in any event, because
his 120-month sentence was a statutorily mandated minimum
sentence based on the amount of drugs involved in the conspiracy
to which he knowingly pled guilty. 21 U.S.C.A. § 841(b)(1)(A)
(West 2000 & Supp. 2011). Furthermore, Morales has failed to
overcome the presumption of correctness accorded on appeal to
his properly calculated advisory Sentencing Guidelines range.
Rita v. United States, 551 U.S. 338, 347 (2007). Finally, as
trial counsel noted at the sentencing hearing, Morales was
ineligible for the safety valve provision because he steadfastly
refused to cooperate with the Government as required for this
reduction under USSG § 5C1.2(a)(5).
3
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Morales’ conviction and sentence. This
court requires that counsel inform Morales, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Morales 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 Morales. 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