CORRECTED OPINION
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4091
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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