UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4867
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCIAL LEDEZMA RICO,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:10-cr-00015-RLV-DCK-1)
Submitted: May 31, 2012 Decided: June 5, 2012
Before KING, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Henderson Hill, Executive Director, FEDERAL DEFENDERS OF NORTH
CAROLINA, INC., Ross H. Richardson, First Assistant Federal
Defender, Charlotte, North Carolina, for Appellant. John George
Guise, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marcial Ledezma Rico appeals the seventy-five–month
sentence he received following his guilty plea to one count of
conspiracy to distribute and to possess with intent to
distribute methamphetamine, in violation of 21 U.S.C.
§§ 841(b)(1)(B), 846 (2006). On appeal, Rico’s counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), in which he concludes that there are no meritorious
issues for appeal but questions the substantive reasonableness
of Rico’s sentence. Rico was informed of his right to file a
supplemental pro se brief, but has not done so. The Government
elected not to file a brief and does not seek to enforce the
plea agreement’s appeal waiver. ∗ We affirm.
When reviewing a sentence for substantive
reasonableness, we take into account “the totality of the
circumstances.” Gall v. United States, 552 U.S. 38, 51 (2007).
We accord a sentence within a properly-calculated Sentencing
Guidelines range an appellate presumption of reasonableness.
See United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008).
Such a presumption is rebutted only by showing “that the
∗
Because the Government fails to assert the waiver as a bar
to the appeal, we may consider the issues raised by counsel and
conduct an independent review of the record pursuant to Anders.
United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).
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sentence is unreasonable when measured against the [18 U.S.C.A.]
§ 3553(a) [(West 2000 & Supp. 2011)] factors.” United States v.
Montes–Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal
quotation marks omitted).
In this case, the district court calculated a
Guidelines range of 100 to 125 months’ imprisonment. Both
parties advocated for a downward variance, primarily based on
Rico’s cooperation with the authorities; however, the parties
disagreed as to the extent that was warranted. The district
court ultimately granted a downward variance and imposed a
seventy-five-month sentence, a sentence greater than that
requested by Rico, but less than that requested by the
Government. The district court noted Rico’s extensive efforts
to cooperate and the safety risks he undertook in doing so.
However, the court was also concerned with the likelihood of
recidivism. We conclude that the district court properly
analyzed the arguments presented by Rico and appropriately
imposed a downward variance after having considered the
mitigating circumstances raised by Rico. Taking into account
the totality of the circumstances and the district court’s
explicit consideration of Rico’s arguments, we can find no abuse
of discretion, and so, we conclude that Rico’s sentence is
substantively reasonable.
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In accordance with Anders, we reviewed the entire
record in this case and found no meritorious claims. Therefore,
we affirm the district court’s judgment. This court requires
that counsel inform Rico, in writing, of the right to petition
the Supreme Court of the United States for further review. If
Rico 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
Rico. 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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