United States v. Hernandez

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4110

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CARLOS CHAVEZ HERNANDEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:05-cr-00242)

Submitted: September 17, 2007 Decided: October 17, 2007

Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

James S. Weidner, Jr., Charlotte, North Carolina, for Appellant.
Edward R. Ryan, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Carlos Chavez Hernandez appeals his sentence to 120

months in prison and five years of supervised release after

pleading guilty to conspiracy to possess with intent to distribute

fifty grams or more of methamphetamine and possessing with intent

to distribute fifty grams or more of methamphetamine in violation

of 21 U.S.C. §§ 841(a)(1), 846 (2000). Hernandez’s attorney has

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), asserting, in his opinion, there are no meritorious grounds

for appeal but raising the issues of whether the district court

erred in failing to sentence Hernandez below the mandatory minimum

pursuant to 18 U.S.C. § 3553(f) (2000), and whether his sentence is

unreasonably long. Finding no reversible error, we affirm.

We will affirm a sentence imposed by the district court

as long as it is within the statutorily prescribed range and

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

A sentence may be unreasonable for both substantive and procedural

reasons. United States v. Moreland, 437 F.3d 424, 434 (4th Cir.),

cert. denied, 126 S. Ct. 2054 (2006). An error of law or fact can

render a sentence unreasonable. United States v. Green, 436 F.3d

449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). We

review a district court’s factual findings for clear error and its

legal conclusions de novo. United States v. Hampton, 441 F.3d 284,

- 2 -
287 (4th Cir. 2006). Issues raised for the first time on appeal

are reviewed for plain error. Hughes, 401 F.3d at 547.

In sentencing a defendant, the district court must:

(1) properly calculate the guideline range; (2) determine whether

a sentence within that range serves the factors under 18 U.S.C.

§ 3553(a) (2000); (3) implement mandatory statutory limitations;

and (4) explain its reasons for selecting a sentence. Green, 436

F.3d at 455-56. A sentence within a properly calculated advisory

guideline range is presumed to be reasonable. Id. at 457; see Rita

v. United States, 127 S. Ct. 2456 (2007) (upholding presumption of

reasonableness). This presumption can only be rebutted by showing

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

factors. United States v. Montes-Pineda, 445 F.3d 375, 379 (4th

Cir. 2006), cert. denied, 127 S. Ct. 3044 (2007).

The district court determined Hernandez’s base offense

level under U.S. Sentencing Guidelines Manual § 2D1.1(c)(5) (2005)

was thirty and accorded him a three-level reduction for acceptance

of responsibility. With a criminal history category III, his

guideline range was 87 to 108 months in prison. However, as

Hernandez conceded, he was subject to a mandatory minimum sentence

of ten years, see 21 U.S.C. § 841(b)(1)(A)(viii) (2000), and the

district court properly found his advisory guideline sentence was

120 months. Because Hernandez had four criminal history points, he

- 3 -
did not meet the requirements under 18 U.S.C. § 3553(f)(1), and his

sentence to the mandatory minimum was not unreasonably long.

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 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

- 4 -