United States v. Otilio Delgado

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4818

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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