United States v. Regino Salas-Cruz

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4421

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

REGINO SALAS-CRUZ,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:10-cr-00128-RJC-1)

Submitted: February 20, 2013 Decided: February 28, 2013

Before SHEDD, DUNCAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Kenneth Darwin Snow, THE SNOW LEGAL GROUP, PLLC, Charlotte,
North Carolina, for Appellant. Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Regino Salas-Cruz pleaded guilty pursuant to a plea

agreement to conspiracy to distribute and possess with intent to

distribute at least one kilogram of heroin, in violation of 21

U.S.C. §§ 846, 841(b)(1)(A) (2006). The district court

sentenced Salas-Cruz to seventy months’ imprisonment. On

appeal, counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), certifying that there are no

meritorious issues for appeal, but questioning whether the

district court sufficiently explained the imposed sentence. In

Salas-Cruz’s pro se supplemental brief, he argues that his trial

counsel was ineffective in failing to adequately advise him

regarding his guilty plea, and he attempts to clarify that his

involvement in the conspiracy was minor. The Government

declined to file a responsive brief. Following a careful review

of the record, we affirm.

Because Salas-Cruz 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, Salas-Cruz 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 Salas-Cruz’s plea was knowing and

voluntary.

We review Salas-Cruz’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).

We conclude that the district court committed neither

procedural nor substantive error in sentencing. The court

verified that Salas-Cruz discussed the presentence report with

his attorney, ensured that Salas-Cruz had no objections to the

presentence report, and heard argument from counsel and

allocution from Salas-Cruz. The court accurately calculated and

considered as advisory Salas-Cruz’s applicable Guidelines range.

The district court also considered the § 3553(a) factors and

explained that the within-Guidelines sentence was warranted in

light of Salas-Cruz’s lack of criminal history, the seriousness

of the offense, and Salas-Cruz’s involvement in the conspiracy.

Further, neither counsel nor Salas-Cruz offers any grounds to

rebut the presumption on appeal that the within-Guidelines

sentence of seventy months’ imprisonment is substantively

reasonable. Accordingly, we conclude that the district court

did not abuse its discretion in sentencing Salas-Cruz.

In his pro se brief, Salas-Cruz asserts that his trial

counsel rendered ineffective assistance. Claims of ineffective

assistance of counsel are generally not cognizable on direct

appeal, unless the record conclusively establishes counsel’s

“objectively unreasonable performance” and resulting prejudice.

United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). The

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record does not conclusively establish that trial counsel

rendered ineffective assistance to Salas-Cruz. Salas-Cruz must

therefore bring his allegation of ineffective assistance of

counsel in a 28 U.S.C.A. § 2255 (West Supp. 2012) motion, should

he wish to pursue such a claim. United States v. Baptiste, 596

F.3d 214, 216 n.1 (4th Cir. 2010).

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. We therefore affirm Salas-Cruz’s conviction and

sentence. This court requires that counsel inform Salas-Cruz,

in writing, of the right to petition the Supreme Court of the

United States for further review. If Salas-Cruz 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 Salas-Cruz.

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