UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4540
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HERBER ALEXSANDER GONZALES-ESCOBAR,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:13-cr-00346-NCT-1)
Submitted: July 23, 2015 Decided: July 27, 2015
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Diane K. Jones McVay, JONES MCVAY LAW FIRM, PLLC, Dallas, Texas
for Appellant. Frank Joseph Chut, Jr., Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Herber Gonzales-Escobar appeals his conviction and twenty-
three-month sentence following his guilty plea to theft of
government property and aggravated identity theft, in violation of
18 U.S.C. §§ 641, 1028A (2012). Gonzales-Escobar’s counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), certifying that there are no meritorious grounds for appeal
but questioning whether the district court erred in denying his
request for a downward variance and whether counsel was
ineffective. Gonzales-Escobar was advised of his right to file a
pro se supplemental brief but did not file one. We affirm.
We review Gonzales-Escobar’s sentence for reasonableness,
applying an abuse-of-discretion standard. Gall v. United States,
552 U.S. 38, 41 (2007). This requires consideration of both the
procedural and substantive reasonableness of the sentence. Id. at
51. We first assess whether the district court properly calculated
the advisory Guidelines range, considered the factors set forth at
18 U.S.C. § 3553(a) (2012), analyzed any arguments presented by
the parties, and sufficiently explained the selected sentence.
Id. at 49-51. If we find no procedural error, we review the
sentence for substantive reasonableness, “tak[ing] into account
the totality of the circumstances.” Id. at 51. “Any sentence
that is within or below a properly calculated Guidelines range is
presumptively reasonable.” United States v. Louthian, 756 F.3d
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295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014). The
defendant bears the burden to rebut this presumption “by showing
that the sentence is unreasonable when measured against the . . .
§ 3553(a) factors.” Id.
Gonzales-Escobar requested a downward variance based on
several mitigating circumstances, including his difficult
upbringing, an overstated criminal history, and his acceptance of
responsibility. The district court denied his request due to the
seriousness of the offense. In light of the court’s explanation
for denying Gonzales-Escobar’s variance request and its
consideration of the relevant § 3553(a) factors, we conclude that
the sentence was procedurally reasonable. Moreover, Gonzales-
Escobar offers nothing to rebut the presumption of substantive
reasonableness.
Gonzales-Escobar next asserts that counsel was ineffective
for failing to request that he be placed in the Fast Track program
for deportable aliens. We conclude that this claim is not
cognizable on direct appeal because ineffectiveness does not
conclusively appear on the face of the record. United States v.
Benton, 523 F.3d 424, 435 (4th Cir. 2008).
In accordance with Anders, we have reviewed the entire record
in this case and found no meritorious issues for appeal.
Accordingly, we affirm the district court’s judgment. This court
requires that counsel inform Gonzales-Escobar, in writing, of the
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right to petition the Supreme Court of the United States for
further review. If Gonzales-Escobar 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 Gonzales-Escobar. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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