United States v. Gabriel Chavez-Vargas

CORRECTED OPINION

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4091

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

GABRIEL CHAVEZ-VARGAS,

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. (1:11-cr-00177-NCT-1)

Submitted: September 21, 2012 Decided: November 5, 2012

Corrected Opinion Filed: November 5, 2012

Before KING, DIAZ, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Stacey D. Rubain, QUANDER & RUBAIN, P.A., Winston-Salem, 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Unpublished opinions are not binding precedent in this circuit.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:

Gabriel Chavez-Vargas (“Vargas”) pled guilty, pursuant

to a written plea agreement, to one count of conspiracy to

distribute five kilograms or more of cocaine, in violation of

21 U.S.C.A. § 841(a)(1), (b)(1)(A) (West 2006 & Supp. 2012) and

21 U.S.C. § 846 (2006). The district court determined that

Vargas was eligible for relief under the safety valve, 18 U.S.C.

§ 3553(f) (2006), calculated his Guidelines range under the U.S.

Sentencing Guidelines Manual (2011) at seventy to eighty-seven

months’ imprisonment, and sentenced Vargas to eighty months’

imprisonment. On appeal, counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), stating that there

are no meritorious issues for appeal, but questioning whether

the district court abused its discretion in imposing sentence.

Vargas has filed a pro se supplemental brief raising several

issues. We affirm.

This court reviews Vargas’ sentence for reasonableness

“under a deferential abuse-of-discretion standard.” Gall v.

United States, 552 U.S. 38, 41, 51 (2007). In conducting this

review, this court considers whether the district court properly

calculated the defendant’s advisory Guidelines range, gave the

parties an opportunity to argue for an appropriate sentence,

considered the 18 U.S.C. § 3553(a) factors, selected a sentence

based on clearly erroneous facts, or failed to explain

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sufficiently the selected sentence. Id. at 49-51. “When

rendering a sentence, the district court must make an

individualized assessment based on the facts presented,” United

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal

quotation marks and emphasis omitted), and must “adequately

explain the chosen sentence to allow for meaningful appellate

review and to promote the perception of fair sentencing.” Gall,

552 U.S. at 50. “When imposing a sentence within the

Guidelines, however, the [district court’s] explanation need not

be elaborate or lengthy because [G]uidelines sentences

themselves are in many ways tailored to the individual and

reflect approximately two decades of close attention to federal

sentencing policy.” United States v. Hernandez, 603 F.3d 267,

271 (4th Cir. 2010) (internal quotation marks omitted).

If the sentence is free of significant procedural

error, we review it for substantive reasonableness, “tak[ing]

into account the totality of the circumstances.” Gall, 552 U.S.

at 51. If the sentence is within the properly calculated

Guidelines range, we apply a presumption on appeal that the

sentence is substantively reasonable. United States v.

Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). Such a

presumption is rebutted only if the defendant shows “that the

sentence is unreasonable when measured against the § 3553(a)

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factors.” United States v. Montes-Pineda, 445 F.3d 375, 379

(4th Cir. 2006) (internal quotation marks omitted).

In this case, the district court correctly calculated

and considered the advisory Guidelines range, heard argument

from counsel and allocution from Vargas. The court explained

that the within-Guidelines sentence of eighty months’

imprisonment was warranted in light of the nature and

circumstances of Vargas’ offense and his history and

characteristics. Neither counsel nor Vargas offers any grounds

to rebut the presumption on appeal that the within-Guidelines

sentence is substantively reasonable. Accordingly, we conclude

that the district court did not abuse its discretion in

sentencing Vargas.

In accordance with Anders, we have reviewed the issues

raised in Vargas’ pro se supplemental brief and the entire

record in this case and have found no meritorious issues for

appeal. * Because Vargas did not move to withdraw his guilty plea

in the district court, we review the Fed. R. Crim. P. 11

colloquy for plain error only. United States v. Martinez,

*
To the extent that Vargas asserts claims of ineffective
assistance of counsel, we find them inappropriate for resolution
on direct appeal. Because ineffectiveness of counsel is not
conclusively established by the record, Vargas must assert such
claims, if at all, in an appropriate motion for post-conviction
relief pursuant to 28 U.S.C.A. § 2255 (West Supp. 2012). United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997).

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277 F.3d 517, 524-26 (4th Cir. 2002). To demonstrate plain

error, a defendant must show: (1) there was error; (2) the error

was plain; and (3) the error affected his substantial rights.

United States v. Olano, 507 U.S. 725, 732 (1993). In the guilty

plea context, a defendant meets his burden to establish that a

plain error affected his substantial rights by showing a

reasonable probability that he would not have pled guilty but

for the Rule 11 omission. United States v. Massenburg, 564 F.3d

337, 343 (4th Cir. 2009). The record contains no suggestion

that, but for any error by the district court at the Rule 11

colloquy, Vargas would not have entered his guilty plea.

Accordingly, we conclude that, because any error by the district

court in conducting the colloquy did not affect Vargas’

substantial rights, the district court did not plainly err in

accepting his guilty plea.

We therefore affirm the district court’s judgment.

This court requires that counsel inform Vargas, in writing, of

the right to petition the Supreme Court of the United States for

further review. If Vargas 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 Vargas.

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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