United States v. Keith Rivera

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4450

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

KEITH RIVERA,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:15-cr-00024-RJC-5)

Submitted: February 24, 2017 Decided: March 10, 2017

Before AGEE and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Mark P. Foster, Jr., RAWLS, SCHEER, FOSTER & MINGO, 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Unpublished opinions are not binding precedent in this circuit.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:

Keith Rivera pled guilty, pursuant to a written plea

agreement, to possessing with intent to distribute cocaine base,

in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2012). The

district court sentenced Rivera to 36 months’ imprisonment.

Pursuant to Anders v. California, 386 U.S. 738 (1967), Rivera’s

counsel has filed a brief certifying that there are no

meritorious grounds for appeal. We affirm the district court’s

judgment.

We first review the adequacy of the Fed. R. Crim. P. 11

hearing; because Rivera did not move to withdraw his guilty

plea, we review the hearing for plain error. United States v.

Sanya, 774 F.3d 812, 815 (4th Cir. 2014). Before accepting a

guilty plea, the district court must conduct a plea colloquy in

which it informs the defendant of, and determines he

understands, the rights he is relinquishing by pleading guilty,

the charges to which he is pleading, and the maximum and

mandatory minimum penalties he faces. Fed. R. Crim. P.

11(b)(1); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir.

1991). The court also must ensure that the plea was voluntary

and not the result of threats, force, or promises not contained

in the plea agreement, Fed. R. Crim. P. 11(b)(2), and “that

there is a factual basis for the plea,” Fed. R. Crim. P.

11(b)(3). Although we note that there were minor omissions in

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the Rule 11 colloquy conducted by the magistrate judge, we

conclude that these minor omissions did not affect Rivera’s

substantial rights. See United States v. Davila, 133 S. Ct.

2139, 2147 (2013) (stating that, to demonstrate effect on

substantial rights in Rule 11 context, defendant “must show a

reasonable probability that, but for the error, he would not

have entered the plea” (internal quotation marks omitted)).

Next, we review a defendant’s sentence “under a deferential

abuse-of-discretion standard.” Gall v. United States, 552 U.S.

38, 41 (2007). Under this standard, a sentence is reviewed for

both procedural and substantive reasonableness. Id. at 51. In

determining procedural reasonableness, we consider whether the

district court properly calculated the defendant’s advisory

Sentencing Guidelines range, gave the parties an opportunity to

argue for an appropriate sentence, considered the 18 U.S.C.

§ 3553(a) (2012) factors, and sufficiently explained the

selected sentence. Id. at 49-51. If a sentence is free of

“significant procedural error,” then we review it for

substantive reasonableness, “tak[ing] into account the totality

of the circumstances.” Id. at 51. “Any sentence that is within

or below a properly calculated Guidelines range is presumptively

reasonable.” United States v. Louthian, 756 F.3d 295, 306 (4th

Cir. 2014).

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Our review of the record leads us to conclude that Rivera’s

sentence is procedurally sound. We further conclude that Rivera

has failed to overcome the presumption of reasonableness

accorded his within-Guidelines sentence.

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious grounds for

appeal. We therefore affirm the district court’s judgment.

This court requires that counsel inform Rivera, in writing, of

the right to petition the Supreme Court of the United States for

further review. If Rivera 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 Rivera.

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