United States v. Mauricio Murillo ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4168
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MAURICIO GOCHEZ MURILLO,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:12-cr-00230-TDS-1)
Submitted: November 6, 2013 Decided: November 14, 2013
Before SHEDD and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed and remanded by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Andrew Charles Cochran, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mauricio Gochez Murillo appeals his sentence totaling
130 months in prison after pleading guilty to interference with
commerce by robbery in violation of 18 U.S.C. § 1951(a) (2006),
brandishing a firearm during and in relation to a crime of
violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (2006),
and illegal reentry of a deported alien in violation of 8 U.S.C.
§ 1326(a) (2006). Murillo’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 issue of whether the district court erred by imposing a
sentence of 130 months imprisonment. Murillo was notified of
his right to file a pro se supplemental brief but has not done
so. We affirm Murillo’s sentence and the district court’s
judgment, but we remand for the purpose of correcting a clerical
error in the written judgment under Fed. R. Crim. P. 36.
We review a sentence under a deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). The first step in this review requires us to ensure
that the district court committed no significant procedural
error, such as improperly calculating the Guidelines range,
failing to consider the 18 U.S.C. § 3553(a) (2006) factors, or
failing to adequately explain the sentence. United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009). If the sentence is
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procedurally reasonable, we then consider the substantive
reasonableness of the sentence imposed, taking into account the
totality of the circumstances. Gall, 552 U.S. at 51. We
presume that a sentence within a properly calculated Guidelines
range is substantively reasonable. United States v. Susi, 674
F.3d 278, 289 (4th Cir. 2012). Moreover, a statutorily required
sentence is per se reasonable. United States v. Farrior, 535
F.3d 210, 224 (4th Cir. 2008).
We have reviewed the record and conclude that
Murillo’s sentence is procedurally and substantively reasonable,
and the district court did not err or abuse its discretion in
sentencing him to 130 months in prison. The district court
properly calculated his Guidelines range and reasonably
determined that a sentence within the range on counts one and
three, followed by the mandatory consecutive seven-year prison
term on count two, was appropriate in this case.
As to count three, the district court adopted the
presentence report and determined that Murillo’s removal from
the United States in 2009 was subsequent to his conviction for a
felony in 2006, and the court correctly applied the penalty
provisions under 8 U.S.C. § 1326(b)(1) (2006); U.S. Sentencing
Guidelines Manual § 2L1.2 (2012). However, the written judgment
erroneously states that Murillo was convicted of illegal reentry
of an aggravated felon. See 8 U.S.C. § 1326(b)(2) (2006).
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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm the district court’s judgment,
but we remand to the district court with instructions to correct
the written judgment to conform to the court’s oral findings.
This court requires that counsel inform his or her
client, in writing, of his or her 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 AND REMANDED
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