UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4757
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEJANDRO SANDOVAL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:11-cr-02037-DCN-20)
Submitted: May 30, 2014 Decided: June 10, 2014
Before WYNN and FLOYD, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Leslie T. Sarji, SARJI LAW FIRM, LLC, Charleston, South
Carolina, for Appellant. Robert Nicholas Bianchi, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alejandro Sandoval appeals his conviction and the 135-
month sentence imposed following his guilty plea to possession
with intent to distribute 500 grams or more of cocaine, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) (2012).
Sandoval’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 the
district court (1) erroneously withheld a one-level reduction
for acceptance of responsibility, and (2) failed to adequately
explain its sentence. Sandoval has filed a pro se supplemental
brief arguing that the district court improperly calculated the
drug weight attributable to him and that his counsel was
ineffective. The Government has declined to file a response
brief. Following a careful review of the record, we affirm.
I.
We review criminal sentences for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). In so doing, we “must first
ensure that the district court committed no significant
procedural error,” such as improperly calculating the advisory
Sentencing Guidelines range, failing to consider the 18 U.S.C. §
3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence.
2
Id. If a sentence is procedurally reasonable, we then examine
its substantive reasonableness, taking into account the totality
of the circumstances. United States v. Mendoza–Mendoza, 597
F.3d 212, 216 (4th Cir. 2010). If the sentence is within the
Guidelines range, we presume on appeal that the sentence is
substantively reasonable. United States v. Strieper, 666 F.3d
288, 295 (4th Cir. 2012).
A.
First, counsel questions the district court’s decision
to withhold the additional one-level reduction for acceptance of
responsibility under U.S. Sentencing Guidelines Manual (“USSG”)
§ 3E1.1(b). We review this decision for clear error. United
States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007). To merit
this reduction, the defendant must establish by a preponderance
of the evidence “that he has clearly recognized and
affirmatively accepted personal responsibility for his criminal
conduct.” United States v. McKenzie-Gude, 671 F.3d 452, 463
(4th Cir. 2011) (internal quotation marks omitted). A defendant
who falsely denies relevant conduct acts in a manner
inconsistent with acceptance of responsibility. USSG § 3E1.1,
cmt. n.1. Because the sentencing court is in the best position
to evaluate a defendant’s acceptance of responsibility, we
afford great deference to the district court’s determination.
Dugger, 485 F.3d at 239.
3
Although Sandoval pleaded guilty, the district court
determined that his testimony during sentencing that he was
accountable for only one kilogram of cocaine amounted to at
least falsely denying relevant conduct. Given our deference to
the district court’s determination, we cannot conclude that it
clearly erred in denying the additional reduction.
B.
Counsel next questions whether the district court
adequately explained its rationale for the chosen sentence. In
sentencing, the district court must consider the statutory
factors and “make an individualized assessment based on the
facts presented.” Gall, 552 U.S. at 50. While the
“individualized assessment need not be elaborate or lengthy,
. . . it must provide a rationale tailored to the particular
case at hand and adequate to permit meaningful appellate
review.” United States v. Carter, 564 F.3d 325, 330 (4th Cir.
2009). The district court here explained its consideration of
each sentencing factor in determining Sandoval’s sentence. The
court balanced the serious nature of the offense and Sandoval’s
continued disrespect for the law with his need for education and
training and the nature of his prior criminal convictions. The
court considered Sandoval’s motion for a downward variance, and,
while it denied the motion, it noted that the nature of his
criminal history warranted a sentence at the low end of the
4
Guidelines. We thus conclude that Sandoval’s sentence is both
procedurally and substantively reasonable.
II.
Finally, Sandoval argues that his counsel was
ineffective. To prove a claim of ineffective assistance of
counsel, a defendant must show (1) “that counsel’s performance
was deficient,” and (2) “that the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S.
668, 687 (1984). We may address a claim of ineffective
assistance on direct appeal only if the lawyer’s ineffectiveness
conclusively appears on the record. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). We have
thoroughly reviewed the record and conclude that Sandoval has
failed to demonstrate that ineffective assistance of counsel
conclusively appears on the record. We therefore decline to
address this argument on direct appeal, without prejudice to
Sandoval’s right to raise this issue in a 28 U.S.C. § 2255
motion. We have examined Sandoval’s other pro se issue and
conclude that it lacks merit.
III.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Sandoval’s conviction and sentence. This
court requires that counsel inform Sandoval, in writing, of the
5
right to petition the Supreme Court of the United States for
further review. If Sandoval 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 Sandoval.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the material
before this court and argument will not aid the decisional
process.
AFFIRMED
6