United States v. Garcia

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-4195

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ALEJANDRO GARCIA,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (CR-04-815)

Submitted: September 28, 2005 Decided: October 18, 2005

Before LUTTIG and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

John H. Hare, Assistant Federal Public Defender, Columbia, South
Carolina, for Appellant. Jonathan Scott Gasser, Acting United
States Attorney, Anne Hunter Young, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Alejandro Garcia appeals his conviction and twenty-four-

month sentence imposed after he pled guilty to being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)

(2000). Garcia’s counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), raising as potential issues the

district court’s compliance with Fed. R. Crim. P. 11 in accepting

Garcia’s guilty plea and the reasonableness of Garcia’s sentence.

Counsel states, however, that in his view, there are no meritorious

issues for appeal. Garcia was informed of his right to file a pro

se supplemental brief but has not done so. We affirm.

Counsel asserts that the district court committed three

errors in accepting Garcia’s guilty plea: (1) the court did not use

the exact language of Rule 11 when informing Garcia of the

consequences of providing false information during the plea

hearing, see Fed. R. Crim. P. 11(b)(1)(A); (2) the court failed to

advise Garcia of any applicable forfeiture, see Fed. R. Crim. P.

11(b)(1)(J); and (3) the court did not inform Garcia that it still

may be obligated to apply the Sentencing Guidelines, see Fed. R.

Crim. P. 11(b)(1)(M). Because Garcia did not move in the district

court to withdraw his guilty plea, we review his challenge to the

adequacy of the Rule 11 hearing for plain error. United States v.

Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (holding that “plain

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error analysis is the proper standard for review of forfeited error

in the Rule 11 context”).

We have carefully reviewed the transcript of the Rule 11

hearing and conclude that the alleged violations of Rule

11(b)(1)(A) and (M) are refuted by the record. With regard to the

district court’s failure to inform Garcia of any applicable

forfeiture, we find that the error did not affect Garcia’s

substantial rights. We therefore find no plain error in the

court’s acceptance of Garcia’s guilty plea.

Counsel also raises as a potential issue the

reasonableness of Garcia’s twenty-four-month sentence in light of

United States v. Booker, 125 S. Ct. 738 (2005). Although the

Sentencing Guidelines are no longer mandatory, Booker makes clear

that a sentencing court “must consult [the] Guidelines and take

them into account when sentencing.” 125 S. Ct. at 767 (Breyer, J.,

opinion of the Court). The court should consider this sentencing

range along with the other factors described in 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2005), and then impose a sentence.

See United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005)

(applying Booker on plain error review). The sentence must be

“within the statutorily prescribed range and . . . reasonable.”

Id. at 546-47 (citations omitted).

In sentencing Garcia, the district court considered the

properly calculated advisory Sentencing Guidelines range and all of

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the factors in § 3553(a). Because the court sentenced Garcia at

the low end of the advisory Guideline range and well below the ten-

year statutory maximum, see 18 U.S.C.A. § 924(a)(2) (West 2000 &

Supp. 2005), we conclude that the sentence is reasonable.

In accordance with Anders, we have reviewed the entire

record for any meritorious issues and have found none.

Accordingly, we affirm Garcia’s conviction and sentence. This

court requires that counsel inform his client, in writing, of his

right to petition the Supreme Court of the United States for

further review. If the client 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 the client. 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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