UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4211
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
YAIR GUZMAN-ORTEGA, a/k/a Alex, a/k/a Chaparo,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:14-cr-00010-MR-DLH-3)
Submitted: March 30, 2016 Decided: April 15, 2016
Before GREGORY, SHEDD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Michael McGuinness, THE MCGUINNESS LAW FIRM, Elizabethtown,
North Carolina, for Appellant. Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Yair Guzman-Ortega pled guilty, pursuant to a written plea
agreement, to conspiracy to possess with intent to distribute
methamphetamine and marijuana, in violation of 21 U.S.C. § 846
(2012). The district court sentenced Guzman-Ortega to 168
months’ imprisonment, the bottom of the advisory Sentencing
Guidelines range. On appeal, counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious grounds for appeal, but questioning whether
Guzman-Ortega’s guilty plea was valid, his sentence was
reasonable, and he received effective assistance of counsel.
Guzman-Ortega was advised of his right to file a pro se
supplemental brief, but has not filed one. The Government
declined to file a brief.
Because Guzman-Ortega did not move in the district court to
withdraw his guilty plea, we review the guilty plea hearing for
plain error. United States v. Massenburg, 564 F.3d 337, 342
(4th Cir. 2009). To establish plain error, Guzman-Ortega must
demonstrate that the district court erred, the error was plain,
and it affected his substantial rights. Henderson v. United
States, 133 S. Ct. 1121, 1126 (2013); United States v. Muhammad,
478 F.3d 247, 249 (4th Cir. 2007). Even if Guzman-Ortega
satisfies these requirements, “correction of the error remains
within our discretion, which we should not exercise . . . unless
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the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Muhammad, 478 F.3d at 249
(internal quotation marks and citation omitted). Our review of
the record leads us to conclude that the district court
substantially complied with Rule 11 of the Federal Rules of
Criminal Procedure in accepting Guzman-Ortega’s guilty plea,
which Guzman-Ortega entered knowingly and voluntarily.
Next, we review Guzman-Ortega’s sentence for procedural and
substantive reasonableness under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). 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) sentencing factors, or
failing to adequately explain the sentence. Id. If we find the
sentence procedurally reasonable, we then consider its
substantive reasonableness. Id. “Any sentence that is within
or below a properly calculated Guidelines range is presumptively
[substantively] reasonable. Such a presumption can only be
rebutted by showing that the sentence is unreasonable when
measured against the 18 U.S.C. § 3553(a) factors.” United
States v. Louthian, 756 F.3d 295, 306 (4th Cir.) (citation
omitted), cert. denied, 135 S. Ct. 421 (2014).
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Upon review, we discern no procedural or substantive
sentencing error by the district court. The district court
correctly calculated Guzman-Ortega’s advisory Guidelines range,
heard argument from counsel, provided Guzman-Ortega an
opportunity to allocute, and considered the § 3553(a) sentencing
factors. We have reviewed the record and conclude that Guzman-
Ortega’s within-Guidelines sentence is both procedurally and
substantively reasonable.
Turning to Guzman-Ortega’s ineffective assistance of
counsel claim, unless an attorney’s ineffectiveness conclusively
appears on the face of the record, such 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 counsel, we conclude that these claims should be
raised, if at all, in a § 2255 motion.
Accordingly, we affirm the judgment of the district court.
In accordance with Anders, we have reviewed the record in this
case and have found no meritorious issues for appeal. This
court requires that counsel inform Guzman-Ortega, in writing, of
the right to petition the Supreme Court of the United States for
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further review. If Guzman-Ortega 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 Guzman-Ortega.
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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