UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5202
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUIS ALBERTO MEJIA-HERNANDEZ, a/k/a Luis Mejia, a/k/a Luis
Mejia-Hernandez, a/k/a Jaime Pineda-Hernandez, a/k/a Jaime
Pineda, a/k/a Chaparo, a/k/a Jose,
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-01175-JFA-2)
Submitted: August 14, 2012 Decided: August 22, 2012
Before NIEMEYER, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph N. Connell, THE CONNELL LAW FIRM, LLC, Lugoff, 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Unpublished opinions are not binding precedent in this circuit.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:
Luis Alberto Mejia-Hernandez pled guilty to one count
each of conspiracy to possess with intent to distribute 500 or
more grams of cocaine, in violation of 21 U.S.C. § 846 (2006),
and improper reentry of an illegal alien, in violation of 8
U.S.C. § 1325 (2006), and was sentenced to sixty months in
prison. Mejia-Hernandez’s attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious grounds for appeal, but
raising as a possible issue for review whether Mejia-Hernandez
was properly sentenced to the statutory mandatory minimum
sentence for his narcotics offense. Mejia-Hernandez was
informed of his right to file a pro se supplemental brief but
has not done so. The Government has declined to file a
responsive brief. Finding no error, we affirm.
Because Mejia-Hernandez did not object to the
Guidelines range calculation in his presentence investigation
report, argue for a sentence different from the one imposed, or
challenge the adequacy of the district court’s explanation of
its sentencing decision, we review his sentence for plain error.
United States v. Lynn, 592 F.3d 572, 577-78 (4th Cir. 2010).
Our review of the record reveals no procedural error in the
district court’s determination of Mejia-Hernandez’s sentence.
The district court adopted the proper Guidelines range
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calculation for Mejia-Hernandez’s convictions, properly
considered the factors listed in 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2012), and appropriately explained Mejia-
Hernandez’s sentence in light of this consideration.
We next consider the substantive reasonableness of the
sentence, taking into account the “totality of the
circumstances, including the extent of any variance from the
Guidelines range.” Gall v. United States, 552 U.S. 38, 51
(2007). Where, as here, the Government has not moved for a
departure from the Guidelines range due to the defendant’s
substantial assistance, the district court lacks discretion to
impose a sentence below the statutory minimum. United States v.
Robinson, 404 F.3d 850, 862 (4th Cir. 2005). Moreover, the
imposition of a statutory mandatory minimum sentence is per se
reasonable. United States v. Farrior, 535 F.3d 210, 224 (4th
Cir. 2008). In Mejia-Hernandez’s case, his sixty-month sentence
was the minimum sentence required by statute for the narcotics
offense. See 21 U.S.C.A. §§ 841(a)(1), (b)(1)(B), 846 (West
1999 & Supp. 2012). Accordingly, we find that the sentence was
substantively reasonable and conclude that the district court
committed no reversible error in its imposition. *
*
To the extent that Mejia-Hernandez attempts to raise an
ineffective assistance of counsel claim based on his summary
allegation that “he felt his attorney had ‘promised’ him a
(Continued)
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In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Mejia-Hernandez, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Mejia-Hernandez 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 Mejia-Hernandez. 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
three-year sentence as opposed to the five year sentence[,]” we
find that ineffective assistance does not conclusively appear on
the record. See United States v. Benton, 523 F.3d 424, 435 (4th
Cir. 2008) (holding that an ineffective assistance of counsel
claim is not cognizable on direct appeal “unless it conclusively
appears from the record that defense counsel did not provide
effective representation”) (internal citation omitted).
Although we note that an ineffective assistance of counsel claim
should generally be raised by a habeas corpus motion under 28
U.S.C.A. § 2255 (West Supp. 2012), we intimate no view as to the
validity or lack of validity of such a claim.
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