United States v. Fabian Beltran Lopez , 547 F. App'x 333 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4234
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FABIAN ISRAEL BELTRAN LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Mark S. Davis, District
Judge. (2:12-cr-00015-MSD-LRL-2)
Submitted: November 26, 2013 Decided: December 5, 2013
Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Richard J.
Colgan, Assistant Federal Public Defender, Caroline S. Platt,
Appellate Attorney, Norfolk, Virginia, for Appellant. Laura
Marie Everhart, Assistant United States Attorney, Norfolk,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Fabian Israel Beltran Lopez appeals the district
court’s judgment sentencing him to 168 months’ imprisonment.
Beltran Lopez pled guilty to a seventeen-count indictment
alleging his extensive involvement in a drug trafficking
operation. Beltran Lopez’s counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), certifying that
there are no meritorious grounds for appeal but questioning
whether Beltran Lopez’s sentence is substantively reasonable.
Beltran Lopez, though given the opportunity to do so, has not
filed a pro se supplemental brief. We affirm.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). If the sentence is free of significant
procedural error, as here, we consider the substantive
reasonableness of the sentence, “tak[ing] into account the
totality of the circumstances.” Id. If the sentence is within
the Guidelines range, we presume on appeal that the sentence is
reasonable. United States v. Day, 700 F.3d 713, 730 (4th Cir.
2012), cert. denied, 133 S. Ct. 2038 (2013); see Rita v. United
States, 551 U.S. 338, 346–56 (2007) (permitting appellate
presumption of reasonableness for within-Guidelines sentence).
Such a presumption is rebutted only if the defendant shows “that
the sentence is unreasonable when measured against the § 3553(a)
2
factors.” United States v. Montes-Pineda, 445 F.3d 375, 379
(4th Cir. 2006) (internal quotation marks omitted).
Beltran Lopez contends that his within-Guidelines
sentence is substantively unreasonable because the district
court did not accept his argument that the Guidelines were not
empirically based and credited the Government’s interpretation
of Beltran Lopez’s role in the offense. We will not disregard
the presumption of reasonableness that attaches to a within-
Guidelines sentence merely because the Guideline in question is
not empirically based. See United States v. Mondragon-Santiago,
564 F.3d 357, 367 (5th Cir. 2009). Additionally, we conclude
that there was sufficient evidence for the district court to
refuse to vary below the Guidelines range based on Beltran
Lopez’s role in the offense. Lastly, we conclude that the
district court gave sufficient reasons for its within-Guidelines
sentence, relying on drug quantity and harm to the community.
In accordance with Anders, we have reviewed the 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 Beltran Lopez, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Beltran Lopez 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
3
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Beltran Lopez.
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