UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4025
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERTO AVENDANO ACEVEDO,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cr-00113-TDS-1)
Submitted: October 20, 2011 Decided: November 4, 2011
Before AGEE and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Brian M. Aus, Durham, North Carolina, for Appellant. Randall
Stuart Galyon, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roberto Avendano Acevedo appeals the 106-month
sentence imposed following his guilty plea to possession with
intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1) (2006), and possession of a firearm in furtherance
of a drug trafficking crime, in violation of 18 U.S.C.A.
§ 924(c)(1)(A)(i) (West 2000 & Supp. 2011). Acevedo’s counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting that there are no meritorious grounds for
appeal but questioning whether there was an adequate factual
basis to support the guilty plea and whether the district
court’s sentence was reasonable. Acevedo was advised of his
right to file a pro se supplemental brief but did not file one.
Finding no error, we affirm.
Counsel first questions whether the factual basis was
sufficient for the district court to accept Acevedo’s guilty
plea. Prior to accepting a guilty plea, “the [district] court
must determine that there is a factual basis for the plea.”
Fed. R. Crim. P. 11(b)(3); see United States v. Ketchum, 550
F.3d 363, 366 (4th Cir. 2008) (recognizing that defendant may
challenge on appeal district court’s failure to develop factual
basis on record). The district court “need only be subjectively
satisfied that there is a sufficient factual basis for a
conclusion that the defendant committed all of the elements of
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the offense.” United States v. Mitchell, 104 F.3d 649, 652 (4th
Cir. 1997).
At the plea hearing, the parties did not dispute the
factual basis filed with the plea agreement. Upon review, we
conclude that the district court did not err in accepting the
offense conduct presented as sufficient to enter the guilty
plea. See United States v. Mastrapa, 509 F.3d 652, 656-57 (4th
Cir. 2007) (stating plain error standard of review); United
States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002) (establishing
elements of § 924(c)(1)(A) offense); United States v. Randall,
171 F.3d 195, 209 (4th Cir. 1999) (establishing elements of
possession with intent to distribute controlled substance).
Counsel also questions whether the district court’s
sentence was 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) (2006) factors, or failing to adequately explain the
sentence. Gall v. United States, 552 U.S. 38, 51 (2007).
Because Acevedo preserved his claim of error below, we review
for reasonableness under an abuse of discretion standard,
reversing “unless . . . the error was harmless.” United States
v. Lynn, 592 F.3d 572, 576, 578 (4th Cir. 2010); see Gall, 552
U.S. at 46. Our review of the record leads us to conclude that
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the district court did not commit procedural error in imposing
Acevedo’s sentence.
We next 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 may consider it
presumptively reasonable. United States v. Mendoza-Mendoza, 597
F.3d 212, 216 (4th Cir. 2010). The presumption may be rebutted
by a showing “that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks
omitted). On review, Acevedo’s within-Guidelines sentence is
presumptively reasonable, and he has not rebutted that
presumption. Therefore, we conclude that the district court did
not commit substantive error in imposing Acevedo’s sentence.
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 Acevedo, in writing, of his right
to petition the Supreme Court of the United States for further
review. If Acevedo 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
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was served on Acevedo. We dispense with oral argument because
the facts and legal conclusions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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