UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4435
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE N. CASTRO,
Defendant - Appellant.
No. 13-4441
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARIANO MARTINEZ REZA, a/k/a Mariano Reza Martinez,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:12-cr-00317-NCT-14; 1:12-cr-
00317-NCT-12)
Submitted: October 28, 2014 Decided: November 3, 2014
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North
Carolina; Todd Allen Smith, LAW FIRM OF TODD ALLEN SMITH,
Graham, North Carolina, for Appellants. Sandra Jane Hairston,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Pursuant to their written plea agreements, Jose N.
Castro and Mariano Martinez Reza (collectively, “Defendants”),
pled guilty to conspiracy to distribute controlled substances, *
in violation of 21 U.S.C. § 846 (2012). The district court
sentenced Castro to thirty-four months’ imprisonment and Reza to
the statutory mandatory minimum of 120 months’ imprisonment. In
this consolidated appeal, counsel have filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), averring that there
are no meritorious issues for appeal but seeking review of
Defendants’ convictions and sentences. Each Defendant was
advised of his right to file a supplemental brief but neither
has filed one. Finding no reversible error, we affirm the
district court’s judgments.
Counsel first question whether the district court
fully complied with Federal Rule of Criminal Procedure 11 in
accepting Defendants’ guilty pleas. Upon review of the
transcripts from the plea colloquies, we conclude that the
district court substantially complied with Rule 11 and committed
no error during either plea colloquy warranting correction on
plain error review. See United States v. General, 278 F.3d 389,
*
Castro pled guilty to conspiracy to distribute marijuana;
Reza pled guilty to conspiracy to distribute five kilograms or
more of cocaine.
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393 (4th Cir. 2002) (providing standard of review); see also
Henderson v. United States, 133 S. Ct. 1121, 1126 (2013)
(detailing plain error standard); United States v. Martinez, 277
F.3d 517, 532 (4th Cir. 2002) (holding that defendant must
demonstrate he would not have pled guilty but for the error).
Counsel also question whether the sentences imposed by
the district court are reasonable. In reviewing a sentence, we
must first ensure that the district court did not commit any
“significant procedural error,” such as failing to properly
calculate the applicable Guidelines range, failing to consider
the 18 U.S.C. § 3553(a) (2012) factors, or failing to adequately
explain the sentence. Gall v. United States, 552 U.S. 38, 51
(2007); United States v. Montes-Pineda, 445 F.3d 375, 380 (4th
Cir. 2006) (requiring explanation to be “elaborate enough to
allow [us] to effectively review the reasonableness of the
sentence” (internal quotation marks omitted)).
Once we have determined that there is no procedural
error, we must consider the substantive reasonableness of the
sentence, “tak[ing] into account the totality of the
circumstances.” Gall, 552 U.S. at 51. If the sentence imposed
is within the appropriate Guidelines range, we consider it
presumptively reasonable. United States v. Yooho Weon, 722 F.3d
583, 590 (4th Cir. 2013). The presumption may be rebutted by a
showing “that the sentence is unreasonable when measured against
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the § 3553(a) factors.” Montes-Pineda, 445 F.3d at 379
(internal quotation marks omitted).
Upon review, we conclude that the district court
committed no procedural or substantive error in imposing
Defendants’ sentences. See United States v. Lynn, 592 F.3d 572,
577 (4th Cir. 2010) (providing standard of review); United
States v. Farrior, 535 F.3d 210, 224 (4th Cir. 2008) (stating
that statutory mandatory minimum sentences are “per se
reasonable”).
Castro’s counsel raises several additional issues that
he ultimately concludes are meritless. First, counsel questions
whether the probation officer complied with Federal Rule of
Criminal Procedure 32(e)(2) in disclosing Castro’s presentence
investigation report and whether the district court complied
with Rule 32(i)(1)(A), (3)(B), (4)(A), and (j)(1) during the
sentencing hearing. Upon review, we conclude that the probation
officer and district court complied with the above provisions of
Rule 32 and committed no error warranting correction on plain
error review. See Henderson, 133 S. Ct. at 1126.
Second, counsel questions whether Castro received
ineffective assistance from trial counsel. Unless an attorney’s
ineffectiveness conclusively appears on the face of the record,
we generally do not address ineffective assistance claims on
direct appeal. United States v. Benton, 523 F.3d 424, 435 (4th
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Cir. 2008). Instead, such claims should be raised in a motion
brought pursuant to 28 U.S.C. § 2255 (2012), in order to permit
sufficient development of the record. United States v.
Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). Because there
is no conclusive evidence of ineffective assistance of counsel
on the face of the record, we conclude that these claims should
be raised, if at all, in a § 2255 motion.
Finally, counsel questions whether the Government
engaged in misconduct during Castro’s prosecution; however, he
points to no specific instance of prosecutorial misconduct. Our
review of the record has revealed no evidence of governmental
misconduct. See United States v. Allen, 491 F.3d 178, 191 (4th
Cir. 2007) (providing elements of prosecutorial misconduct
claim). Thus, we find this claim meritless.
In accordance with Anders, we have reviewed the entire
record and have found no meritorious issues for appeal. We
therefore affirm the district court’s judgments. This court
requires that counsel inform Defendants, in writing, of their
right to petition the Supreme Court of the United States for
further review. If either Defendant requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, counsel may move in this court for leave to withdraw
from representation. Counsel’s motion must state that a copy
thereof was served on Defendant. We dispense with oral argument
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because the facts and legal conclusions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED
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