UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4662
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DALIA MARQUEZ BERNAL,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:14-cr-00023-JAB-2)
Submitted: March 13, 2015 Decided: April 2, 2015
Before WILKINSON, AGEE, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John Carlyle Sherrill, III, SHERRILL & CAMERON, PLLC, Salisbury,
North Carolina, for Appellant. Andrew Charles Cochran, OFFICE
OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dalia Marquez Bernal appeals her sentence after pleading
guilty to two counts of brandishing a firearm during and in
relation to a crime of violence in violation of 18 U.S.C. §§ 2,
924(c)(1)(A)(ii) (2012). The district court sentenced Bernal to
the statutory mandatory minimum consecutive prison terms of 84
and 300 months, totaling 384 months or 32 years. Bernal’s
attorney has filed a brief under Anders v. California, 386 U.S.
738 (1967), asserting that there are no meritorious grounds for
appeal but raising the issue of whether the district court erred
in sentencing her to 384 months in prison, including a claim
that her sentence is disproportionate in violation of the Eighth
Amendment. Bernal has filed a pro se supplemental brief raising
the additional issues of whether her guilty plea was knowing and
voluntary, and whether counsel was ineffective. We affirm.
“[F]or a guilty plea to be valid, the Constitution imposes
‘the minimum requirement that [the] plea be the voluntary
expression of [the defendant’s] own choice.’” United States v.
Moussaoui, 591 F.3d 263, 278 (4th Cir. 2010) (quoting Brady v.
United States, 397 U.S. 742, 748 (1970)). “It must reflect a
voluntary and intelligent choice among the alternative courses
of action open to the defendant.” Id. (citation and internal
quotation marks omitted). “In evaluating the constitutional
validity of a guilty plea, courts look to the totality of the
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circumstances surrounding [it], granting the defendant’s solemn
declaration of guilt a presumption of truthfulness.” Id.
(citation and internal quotation marks omitted).
In federal cases, Rule 11 of the Federal Rules of Criminal
Procedure “governs the duty of the trial judge before accepting
a guilty plea.” Boykin v. Alabama, 395 U.S. 238, 243 n.5
(1969). Rule 11 “requires a judge to address a defendant about
to enter a plea of guilty, to ensure that he understands the law
of his crime in relation to the facts of his case, as well as
his rights as a criminal defendant.” United States v. Vonn, 535
U.S. 55, 62 (2002). We “accord deference to the trial court’s
decision as to how best to conduct the mandated colloquy.”
United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). A
guilty plea may be knowingly and intelligently made based on
information received before the plea hearing. See id. at 117;
see also Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (trial
court may rely on counsel’s assurance that the defendant was
properly informed of the elements of the crime).
“A federal court of appeals normally will not correct a
legal error made in criminal trial court proceedings unless the
defendant first brought the error to the trial court’s
attention.” Henderson v. United States, 133 S. Ct. 1121, 1124
(2013) (citing United States v. Olano, 507 U.S. 725, 731
(1993)). Federal Rule of Criminal Procedure 52(b) creates an
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exception to the normal rule, providing “[a] plain error that
affects substantial rights may be considered even though it was
not brought to the court’s attention.” Fed. R. Crim. P. 52(b).
When a defendant does not seek to withdraw her guilty plea
in the district court, we review any claim that the district
court erred at her guilty plea hearing for plain error. See
United States v. Martinez, 277 F.3d 517, 524 (4th Cir. 2002).
Under that standard, a defendant must show (1) error; (2) that
was plain; (3) affecting her substantial rights; and (4) that we
should exercise our discretion to notice the error. Id. at 529,
532. To show that her substantial rights were affected, she
“must show a reasonable probability that, but for the error,
[s]he would not have entered the plea.” United States v.
Dominguez Benitez, 542 U.S. 74, 83 (2004).
We have reviewed the record and conclude that the district
court did not err in accepting Bernal’s guilty plea, and her
plea was knowing and voluntary under the totality of the
circumstances. On appeal, Bernal claims she did not understand
that she would be sentenced to 32 years, and she suggests that
her plea may not have been voluntary. However, the record shows
that she was correctly informed of the mandatory minimum
penalties before the district court accepted her plea; she
denied that anyone had forced her to enter her plea against her
will; she affirmed that she was, in fact, guilty; and there was
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an independent factual basis to support her plea. As a result
of her plea, the Government dismissed eight other counts that
would have exposed her to an additional consecutive prison
sentence. Thus, her decision to plead guilty was a voluntary
and intelligent choice among the available alternatives.
Bernal also contends that her sentence is disproportionate
to the severity of her crimes and constitutes cruel and unusual
punishment in violation of the Eighth Amendment. We review this
claim de novo. See United States v. Dowell, 771 F.3d 162, 167
(4th Cir. 2014). The Supreme Court “has explained that the
narrow proportionality principle of the Eighth Amendment does
not require strict proportionality between crime and sentence,
but forbids only extreme sentences that are grossly
disproportionate to the crime.” United States v. Cobler, 748
F.3d 570, 575 (4th Cir.), cert. denied, 135 S. Ct. 229 (2014)
(citations and internal quotation marks omitted). “Before an
appellate court concludes that a sentence is grossly
disproportionate based on an as-applied challenge, the court
first must determine that a threshold comparison of the gravity
of the offense and the severity of the sentence leads to an
inference of gross disproportionality.” Id. (citations and
internal quotation marks omitted).
We have reviewed the record and conclude that Bernal fails
to make this threshold showing of gross disproportionality.
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Moreover, to the extent that she also contends that her sentence
is unreasonable, we conclude that this claim is without merit.
See United States v. Farrior, 535 F.3d 210, 224 (4th Cir. 2008)
(statutorily required sentence is per se reasonable).
Finally, Bernal arguably claims that her counsel was
ineffective. Unless an attorney’s ineffectiveness conclusively
appears on the face of the record, ineffective assistance claims
are not generally addressed on direct appeal. United States v.
Benton, 523 F.3d 424, 435 (4th 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 the record does not conclusively establish
ineffective assistance of Bernal’s counsel, this claim should be
raised, if at all, in a § 2255 motion.
In accordance with Anders, we have reviewed the record and
have found no meritorious issues for appeal. Accordingly, 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
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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.
AFFIRMED
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