United States v. Roger Mina-Cuero ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4775
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROGER MINA-CUERO, a/k/a Jesus A. Serrano-Machado, a/k/a Jaime
J. Estrada-Vargas, a/k/a Christain C. Diaz,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:14-cr-00131-JCC-1)
Submitted: July 23, 2015 Decided: July 27, 2015
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mark A. Yurachek, MARK ALLEN YURACHEK & ASSOCIATES, Falls Church,
Virginia, for Appellant. Kimberly Riley Pedersen, Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roger Mina-Cuero pled guilty, pursuant to a written plea
agreement, to interstate transportation of stolen property, in
violation 18 U.S.C.A. § 2314 (West 2015), 18 U.S.C. § 2 (2012),
and illegal reentry after removal, in violation of 8 U.S.C.
§ 1326(a), (b)(1) (2012). The district court sentenced Mina-Cuero
to concurrent 36-month terms of imprisonment, within the 33- to
41-month advisory Sentencing Guidelines range. 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.
Mina-Cuero was advised of his right to file a pro se supplemental
brief, but has not filed one. The Government declined to file a
brief.
Because Mina-Cuero did not move in the district court to
withdraw his guilty plea, we review the guilty plea hearing for
plain error. United States v. Martinez, 277 F.3d 517, 525 (4th
Cir. 2002). “To establish plain error, [Mina-Cuero] must show
that an error occurred, that the error was plain, and that the
error affected his substantial rights.” United States v. Muhammad,
478 F.3d 247, 249 (4th Cir. 2007). Even if Mina-Cuero satisfies
these requirements, “correction of the error remains within our
discretion, which we should not exercise . . . unless the error
seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Id. (internal quotation marks and
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citation omitted). Our review of the record leads us to conclude
that the district court substantially complied with Rule 11 of the
Federal Rules of Criminal Procedure in accepting Mina-Cuero’s
guilty plea, which Mina-Cuero entered knowingly and voluntarily.
Turning to Mina-Cuero’s sentence, we review a sentence for
procedural and substantive reasonableness under a deferential
abuse of discretion standard. Gall v. United States, 552 U.S. 38,
51 (2007). We must first ensure that the district court did not
commit any “significant procedural error,” such as failing to
properly calculate the applicable Guidelines range, failing to
consider the 18 U.S.C. § 3553(a) (2012) sentencing factors, or
failing to adequately explain the sentence. Id. If we find the
sentence procedurally reasonable, we then consider its substantive
reasonableness. Id. at 328. We presume on appeal that a sentence
within the properly calculated Guidelines range is substantively
reasonable. United States v. Dowell, 771 F.3d 162, 176 (4th Cir.
2014). Such a presumption is rebutted only when the defendant
shows “that the sentence is unreasonable when measured against the
§ 3553(a) factors.” United States v. Montes-Pineda, 445 F.3d 375,
379 (4th Cir. 2006).
Upon review, we discern no procedural or substantive
sentencing error by the district court. The district court
correctly calculated Mina-Cuero’s advisory Guidelines range, heard
argument from counsel, provided Mina-Cuero an opportunity to
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allocute, and considered the § 3553(a) sentencing factors. We
have reviewed the record and conclude that Mina-Cuero’s within-
Guidelines sentence is both procedurally and substantively
reasonable.
Accordingly, we affirm the judgment of the district court.
In accordance with Anders, we have reviewed the record in this
case and have found no meritorious issues for appeal. This court
requires that counsel inform Mina-Cuero, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Mina-Cuero 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 Mina-Cuero.
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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