UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4818
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
OTILIO DELGADO, a/k/a Tilo, a/k/a Otilio Nava, a/k/a Otilio
Delgado-Nava,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:09-cr-00500-JFA-3)
Submitted: July 21, 2011 Decided: July 25, 2011
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael Chesser, Aiken, South Carolina, for Appellant. Stacey
Denise Haynes, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Otilio Delgado pled guilty, pursuant to a plea
agreement, to conspiracy to possess with intent to distribute
cocaine, crack cocaine, and marijuana, and illegal entry into
the United States. The district court sentenced Delgado to a
total of 135 months’ imprisonment, comprised of 135 months on
the drug count and a concurrent 24 months on the illegal entry
count. On appeal, Delgado’s counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), concluding that
there are no meritorious issues for appeal but questioning
whether Delgado’s sentence was substantively reasonable.
Neither Delgado nor the Government has filed a brief. We
affirm.
Delgado contends that the sentencing court placed too
much weight on his repeated attempts at illegal entry and did
not attribute appropriate significance to other mitigating
factors. Delgado contends that the statutory mandatory minimum
sentence of 120 months would have been more appropriate. When
reviewing a sentence for substantive reasonableness, we take
into account “the totality of the circumstances.” Gall v.
United States, 552 U.S. 38, 51 (2007). We accord a sentence
within a properly-calculated Guidelines range an appellate
presumption of reasonableness. See United States v. Abu Ali,
528 F.3d 210, 261 (4th Cir. 2008). Such a presumption is
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rebutted only by showing “that the sentence is unreasonable when
measured against the [18 U.S.C.A.] § 3553(a) [(West 2000 & Supp.
2011)] factors.” United States v. Montes-Pineda, 445 F.3d 375,
379 (4th Cir. 2006) (internal quotation marks omitted).
After reviewing the record, we conclude that the
district court properly analyzed the arguments presented by
Delgado and appropriately imposed a sentence at the bottom of
the Guidelines range. The court considered the mitigating
circumstances raised by Delgado and relied on them in choosing
the sentence. However, the court also noted Delgado’s repeated
illegal attempts to enter the country, as well as his
participation in a conspiracy that involved guns and kilogram
quantities of cocaine. Taking into account the totality of the
circumstances and the court’s explicit consideration of each of
the § 3553 factors, we can find no abuse of discretion, and so,
we conclude that Delgado’s sentence is substantively reasonable.
Pursuant to Anders, we have examined the entire record
for meritorious appellate issues and found none. Accordingly,
we affirm Delgado’s convictions and sentence. This court
requires that counsel inform Delgado in writing of his right to
petition the Supreme Court of the United States for further
review. If Delgado requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may motion this court for leave to withdraw from
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representation. Counsel’s motion must state that a copy thereof
was served on Delgado. 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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