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 2014-04

United States v. Edwin Galvez-Berganza , 565 F. App'x 257 ( 2014 )


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  •                               UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4436
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
EDWIN GALVEZ-BERGANZA, a/k/a El Gato,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt.    Deborah K. Chasanow, Chief District
Judge. (8:07-cr-00135-DKC-2)
Submitted:   March 31, 2014                  Decided:    April 9, 2014
Before DUNCAN and    KEENAN,   Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Robert C. Bonsib, MARCUSBONSIB, LLC, Greenbelt, Maryland, for
Appellant. James Andrew Crowell, IV, Assistant United States
Attorney, Mara Zusman Greenberg, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edwin       Galvez-Berganza          appeals     his       conviction           and
180-month sentence imposed after his guilty plea to conspiracy
to    distribute      and     possess       with     intent       to     distribute          five
kilograms or more of cocaine, in violation of
    21 U.S.C. § 846
    (2012).       On     appeal,      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     committed         reversible             error      during
Galvez-Berganza’s plea and sentencing hearings.                           Galvez-Berganza
was notified of his right to file a supplemental pro se brief
but has not done so.           We affirm.
Because Galvez-Berganza did not seek to withdraw his
guilty    plea,      we    review    his      plea    colloquy         for     plain    error.
United States v. Martinez,
    277 F.3d 517
    , 525 (4th Cir. 2002);
see Henderson v. United States,
    133 S. Ct. 1121
    , 1126 (2013)
(discussing        plain    error     standard).          We       conclude          that     the
district court substantially complied with the requirements of
Fed. R. Crim. P. 11 in accepting Galvez-Berganza’s guilty plea.
Although       the        district      court        failed        to        ensure          that
Galvez-Berganza        understood       the       Government’s         right    to     use    his
statements under oath in a prosecution for perjury, see Fed. R.
Crim.    P.    11(b)(1)(A),         this    minor     deviation          did    not     affect
Galvez-Berganza’s          substantial        rights.        See       United     States       v.
2
Massenburg,
    564 F.3d 337
    ,      343     (4th     Cir.    2009)       (explaining
defendant’s burden to establish effect on substantial rights).
Moreover,        the    court     ensured         that    the      plea    was    knowing,
voluntary,       and    supported     by     a    factual    basis.         We   therefore
affirm Galvez-Berganza’s conviction.
Turning      to    Galvez-Berganza’s           sentence,      we    review     it
for reasonableness, applying “a deferential abuse-of-discretion
standard.”       Gall v. United States,
    552 U.S. 38
    , 41 (2007).                        This
review entails appellate consideration of both the procedural
and substantive reasonableness of the sentence.
    Id. at 51
    .        We
have thoroughly reviewed the record and discern no procedural
error   in       Galvez-Berganza’s           sentence.          The       district    court
properly     calculated        the    Guidelines         range,     considered       the
    18 U.S.C. § 3553
    (a) (2012) factors, and explained its reasons for
the sentence.          See Gall,
    552 U.S. at 51
    .                   The court sentenced
Galvez-Berganza within the Guidelines range, and he fails to
rebut      the     presumption          of        reasonableness           accorded        his
within-Guidelines sentence.                See United States v. Susi,
    674 F.3d 278
    , 289 (4th Cir. 2012); United States v. Montes-Pineda,
    445 F.3d 375
    , 379 (4th Cir. 2006).                    We therefore conclude that the
district     court      did     not   abuse       its    discretion        in    sentencing
Galvez-Berganza.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious grounds for appeal.
3
We therefore affirm the district court’s judgment.                    This court
requires that counsel inform Galvez-Berganza, in writing, of the
right to petition the Supreme Court of the United States for
further review.     If Galvez-Berganza 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 Galvez-Berganza.                  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
4