United States v. Jose Hernandez Cano ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4067
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSE LUIS HERNANDEZ CANO,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas David
Schroeder, District Judge. (1:10-cr-00089-TDS-2)
Submitted: September 27, 2011 Decided: October 13, 2011
Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Darren Byers, LAW OFFICES OF J. DARREN BYERS, P.A.,
Winston-Salem, North Carolina, for Appellant. Randall Stuart
Galyon, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Luis Hernandez Cano pled guilty to one count of
possession of marijuana with intent to distribute in violation
of 21 U.S.C. § 841(a)(1) (2006), and one count of possession of
firearms by an illegal alien in violation of 18 U.S.C.
§ 922(g)(5) (2006). The district court sentenced Hernandez Cano
to eighty-three months’ imprisonment. Counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), raising
several issues but stating that in his view there are no
meritorious issues for appeal. Hernandez Cano was notified of
his right to file a pro se supplemental brief but has not done
so. We affirm.
Counsel first questions generally whether the
indictment was sufficient. Our review of the indictment
discloses no defects.
Second, counsel suggests review of the Rule 11
hearing. Prior to accepting a guilty plea, a district court
must conduct a plea colloquy in which it informs the defendant
of, and determines that the defendant comprehends, the nature of
the charge to which he is pleading guilty, any mandatory minimum
penalty, the maximum possible penalty he faces, and the rights
he is relinquishing by pleading guilty. Fed. R. Crim. P. 11(b);
United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
“In reviewing the adequacy of compliance with Rule 11, this
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court should accord deference to the trial court’s decision as
to how best to conduct the mandated colloquy with the
defendant.” Defusco, 949 F.2d at 116. We have thoroughly
reviewed the record in this case, and conclude that the district
court complied with the mandates of Rule 11 in accepting
Hernandez Cano’s guilty plea.
Finally, counsel questions whether Hernandez Cano’s
sentence of eighty-three months, based on an advisory range of
seventy to eighty-seven months, was reasonable based on the
totality of the circumstances. We review a sentence for
reasonableness under a deferential abuse-of-discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007). A reasonableness
review includes both procedural and substantive components. Id.A sentence is procedurally reasonable where the district court
committed no significant procedural errors, such as improperly
calculating the Guidelines range, failing to consider the 18
U.S.C. § 3553(a) (2006) factors, or insufficiently explaining
the selected sentence. United States v. Boulware, 604 F.3d 832,
837-38 (4th Cir. 2010).
The substantive reasonableness of a sentence is
assessed in light of the totality of the circumstances. Gall,
552 U.S. at 51. While a sentence may be substantively
unreasonable if the § 3553(a) factors do not support the
sentence, “[r]eviewing courts must be mindful that, regardless
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of ‘the individual case,’ the ‘deferential abuse-of-discretion
standard of review . . . applies to all sentencing decisions.’”
United States v. Diosdado-Star, 630 F.3d 359, 366 (4th Cir.),
cert. denied, 131 S. Ct. 2946 (2011) (citing Gall, 552 U.S. at
52). Moreover, a sentence that falls within a properly
calculated Guidelines range is presumptively reasonable. United
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
We find Hernandez Cano’s sentence to be reasonable.
The record discloses that the district court properly considered
the factors under § 3553(a), and explained why the sentence was
imposed based on the totality of the circumstances. The court
referenced the large quantity of drugs involved and the type of
weapons and ammunition that were being placed illegally into
circulation, which included an assault rifle. Further, the
court considered Hernandez Cano’s history and his lesser
culpability in this particular scenario, while noting that he
had entered the United States illegally on at least two
occasions.
In accordance with Anders, we have reviewed the record
in this case and found no meritorious issues for appeal. We
accordingly affirm the conviction and sentence. This court
requires that counsel inform Hernandez Cano in writing of the
right to petition the Supreme Court of the United States for
further review. If Hernandez Cano requests that a petition be
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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 Hernandez Cano. Finally, 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
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