UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5096
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSE HERRERA SALGADO,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:09-cr-00130-RJC-2)
Submitted: June 21, 2011 Decided: July 8, 2011
Before WILKINSON, NIEMEYER, and WYNN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Haakon Thorsen, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina; Edward R. Ryan, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Herrera Salgado appeals his conviction and
sentence of 118 months in prison and five years of supervised
release after he pled guilty to conspiracy to distribute and to
possess with intent to distribute at least five kilograms of
cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846 (2006).
Salgado’s attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting, in counsel’s
opinion, there are no meritorious grounds for appeal, but
raising the issue of whether the district court erred in failing
to adequately depart for Salgado’s substantial assistance.
Salgado was notified of his right to file a pro se supplemental
brief but has not done so. We dismiss the appeal in part, and
we affirm the district court’s judgment.
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 Guidelines 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). If the sentence is
procedurally reasonable, we then consider the substantive
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reasonableness of the sentence imposed, taking into account the
totality of the circumstances. Gall, 552 U.S. at 51.
In sentencing, the district court should first
calculate the Guidelines range and give the parties an
opportunity to argue for whatever sentence they deem
appropriate. United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007). The district court should then consider the
relevant § 3553(a) factors to determine whether they support the
sentence requested by either party. Id. When rendering a
sentence, the district court must make and place on the record
an individualized assessment based on the particular facts of
the case. Carter, 564 F.3d at 328, 330.
In explaining the chosen sentence, the “sentencing
judge should set forth enough to satisfy the appellate court
that he has considered the parties’ arguments and has a reasoned
basis for exercising his own legal decisionmaking authority.”
Rita v. United States, 551 U.S. 338, 356 (2007). While a
district court must consider the statutory factors and explain
its sentence, it need not explicitly reference § 3553(a) or
discuss every factor on the record. United States v. Johnson,
445 F.3d 339, 345 (4th Cir. 2006).
After determining Salgado’s Guidelines range was 135
to 168 months based on a total offense level of thirty-three and
criminal history category I, the district court granted the
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Government’s motion under 18 U.S.C. § 3553(e) (2006); USSG
§ 5K1.1 to reduce Salgado’s sentence based on his substantial
assistance. The district court sentenced him to 118 months in
prison. On appeal, Salgado challenges the extent of the
district court’s downward departure. However, this decision is
not reviewable and we dismiss this portion of the appeal. See
United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore dismiss the appeal in part, and we affirm
the district court’s judgment. This court requires that counsel
inform his or her client, in writing, of his or her 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.
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.
DISMISSED IN PART;
AFFIRMED IN PART
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