United States v. Berny Nunez , 588 F. App'x 269 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4427
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BERNY ALONSO NUNEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:12-cr-00328-FDW-1)
Submitted: November 25, 2014 Decided: December 19, 2014
Before KING, SHEDD, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Denzil H. Forrester, 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Unpublished opinions are not binding precedent in this circuit.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:
Berny A. Nunez pled guilty, without the benefit of a
written plea agreement, to conspiracy to distribute and possess
with intent to distribute 50 grams or more of methamphetamine,
in violation of 21 U.S.C. §§ 841(b)(1)(A), 846 (2012). * Based on
a total offense level of 33, and a Criminal History category of
I, Nunez’s advisory Guidelines range was 135-168 months’
imprisonment. At sentencing, the district court found that
Nunez qualified for the safety valve provision and lowered his
total offense level to 29, with a resulting advisory Guidelines
range of 87 to 108 months’ imprisonment. The court imposed an
87-month sentence, below the statutory mandatory minimum
sentence of 120 months. Nunez noted a timely appeal.
Nunez’s counsel has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), stating that there are no
meritorious grounds for appeal but questioning whether the
district court erred in failing to require the prosecution to
disclose, at Nunez’s guilty plea hearing, that he might qualify
for the safety valve reduction. Although advised of his right
to file a pro se supplemental brief, Nunez has not done so.
*
Counsel’s brief states that Nunez signed a plea agreement
containing a waiver of his right to a direct appeal. The record
discloses, however, that Nunez pled guilty without a plea
agreement.
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Because Nunez did not move in the district court to
withdraw his guilty plea, the Rule 11 hearing is reviewed for
plain error. United States v. Martinez, 277 F.3d 517, 525 (4th
Cir. 2002). To establish plain error, Nunez must demonstrate
that (1) the district court committed an error; (2) the error
was plain; and (3) the error affected his substantial rights.
Henderson v. United States, 133 S. Ct. 1121, 1126 (2013). In
the guilty plea context, a defendant meets his burden of
demonstrating that an error affected his substantial rights by
showing a reasonable probability that he would not have pled
guilty but for the Rule 11 omission. United States v.
Massenburg, 564 F.3d 337, 343 (4th Cir. 2009).
We find that Nunez cannot show error, let alone plain
error, in the context of his Rule 11 hearing. Counsel argues
that the Government’s attorney should have been required to
mention the safety valve possibility during the Rule 11 hearing.
But there is no such requirement under Rule 11, and Nunez has
provided no authority suggesting otherwise. In any event,
because Nunez was given the benefit of the safety valve
provision at sentencing, any hypothetical error would have been
harmless.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Nunez’s conviction and sentence. This court
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requires that counsel inform Nunez, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Nunez 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 Nunez.
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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