UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5016
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARIO ALBERTO AGUILAR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:10-cr-00140-F-1)
Submitted: November 28, 2012 Decided: December 20, 2012
Before MOTZ, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Francis A. Pommett, III, NATHANSON & POMMETT, Baltimore,
Maryland, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mario Alberto Aguilar pleaded guilty to one count of
illegally reentering the United States after having been removed
as an aggravated felon, in violation of 8 U.S.C. § 1326(a),
(b)(2) (2006). The district court calculated Aguilar’s
Guidelines range under the U.S. Sentencing Guidelines Manual
(2010) at thirty-seven to forty-six months’ imprisonment and
sentenced Aguilar to forty-six months’ imprisonment. On appeal,
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), which concedes that Aguilar’s guilty plea was
knowing and voluntary and that his sentence was reasonable, and
concludes that there are no meritorious issues for appeal.
Aguilar was advised of his right to file a pro se supplemental
brief, but has not done so. The Government declined to file a
brief. We affirm.
Because Aguilar did not move in the district court to
withdraw his guilty plea, we review the Rule 11 hearing for
plain error. United States v. Martinez, 277 F.3d 517, 525 (4th
Cir. 2002). To prevail under this standard, Aguilar must
establish that an error occurred, was plain, and affected his
substantial rights. United States v. Massenburg, 564 F.3d 337,
342-43 (4th Cir. 2009). Our review of the record establishes
that the district court substantially complied with Rule 11’s
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requirements, ensuring that Aguilar’s plea was knowing and
voluntary.
We review Aguilar’s sentence under a deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of the sentence. Id.;
United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). After
determining whether the district court correctly calculated the
advisory Guidelines range, we must decide whether the court
considered the § 3553(a) factors, analyzed the arguments
presented by the parties, and sufficiently explained the
selected sentence. Lynn, 592 F.3d at 575-76; United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009).
Once we have determined that the sentence is free of
procedural error, we consider the substantive reasonableness of
the sentence, “tak[ing] into account the totality of the
circumstances.” Gall, 552 U.S. at 51; Lynn, 592 F.3d at 575.
If the sentence is within the appropriate Guidelines range, we
apply a presumption on appeal that the sentence is reasonable.
United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir.
2010). Such a presumption is rebutted only if the defendant
demonstrates “that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
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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, and heard argument
from counsel and allocution from Aguilar. The court considered
the § 3553(a) factors and explained that the within-Guidelines
sentence was warranted in light of the nature and circumstances
of Aguilar’s offense, and the need for the sentence to reflect
the seriousness of the offense and to protect the public from
further crimes by Aguilar. Further, neither counsel nor Aguilar
offers any grounds to rebut the presumption on appeal that the
within-Guidelines sentence of forty-six months’ imprisonment is
substantively reasonable. Accordingly, we conclude that the
district court did not abuse its discretion in sentencing
Aguilar.
In accordance with Anders, we have reviewed the entire
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 Aguilar, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Aguilar 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
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representation. Counsel’s motion must state that a copy thereof
was served on Aguilar.
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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