United States v. Aguilar-Rivera , 391 F. App'x 282 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5260
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE LUIS AGUILAR-RIVERA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:03-cr-00004-RLV-CH-9)
Submitted: July 23, 2010 Decided: August 17, 2010
Before MOTZ and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James E. Quander, Jr., QUANDER & RUBAIN, P.A., Winston-Salem,
North Carolina, for Appellant. Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Jose Luis Aguilar-Rivera
pled guilty to conspiracy to possess with intent to distribute
quantities of cocaine and cocaine base, in violation of 21
U.S.C. § 846 (2006). The district court sentenced Aguilar-
Rivera to 127 months’ imprisonment, a term within the advisory
guidelines range. Aguilar-Rivera timely appealed.
Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), finding no meritorious grounds
for appeal but questioning whether the district court erred by
imposing a two-level firearm enhancement under U.S. Sentencing
Guidelines Manual § 2D1.1(b)(1) (2008). Aguilar-Rivera filed a
pro se supplemental brief challenging his guilty plea and
asserting claims of ineffective assistance of appellate counsel.
Turning first to Aguilar-Rivera’s pro se challenge to
his guilty plea, he contends that his plea was not knowing and
voluntary because he waived numerous rights without any
concessions by the Government. Because he did not move in the
district court to withdraw his guilty plea, any error in the
Fed. R. Crim. P. 11 hearing is reviewed for plain error. United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). An
appropriately conducted Rule 11 proceeding creates “a strong
presumption that the plea is final and binding.” United States
v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992). Our review of
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the record convinces us that the district court substantially
complied with the requirements of Rule 11 in accepting Aguilar-
Rivera’s guilty plea. Moreover, contrary to his claim that he
received no concessions for his plea, in exchange for the plea,
the Government successfully moved for the dismissal of two other
charges pending against Aguilar-Rivera. Furthermore, the court
granted him a three-level reduction in offense level for
acceptance of responsibility. We hold that Aguilar-Rivera’s
claim that his guilty plea was not knowing and voluntary is
meritless.
Defense counsel questions the reasonableness of
Aguilar-Rivera’s sentence, specifically the two-level firearm
enhancement under USSG § 2D1.1(b)(1), but ultimately concludes
that the sentence is reasonable. An appellate court reviews a
sentence for reasonableness under an abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). This
review requires consideration of both the procedural and
substantive reasonableness of a sentence. Id. First, the court
must assess whether the district court properly calculated the
guidelines range, considered the 18 U.S.C. § 3553(a) (2006)
factors, analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Id. at 49-50; see
United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) (“[A]n
individualized explanation must accompany every sentence.”);
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United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). An
extensive explanation is not required as long as the appellate
court is satisfied “‘that [the district court] has considered
the parties’ arguments and has a reasoned basis for exercising
[its] own legal decisionmaking authority.’” United States v.
Engle, 592 F.3d 495, 500 (4th Cir. 2010) (quoting Rita v. United
States, 551 U.S. 338, 356 (2007)), petition for cert. filed, 78
U.S.L.W. 3764 (U.S. 2010) (No. 09-1512). Even if the sentence
is procedurally reasonable, the court must consider the
substantive reasonableness of the sentence, “examin[ing] the
totality of the circumstances to see whether the sentencing
court abused its discretion in concluding that the sentence it
chose satisfied the standards set forth in § 3553(a).” United
States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).
Under USSG § 2D1.1(b)(1), a district court must
increase a defendant’s offense level by two levels if the
defendant possessed a firearm during a drug offense. USSG
§ 2D1.1(b)(1). The enhancement is proper when “the weapon was
possessed in connection with drug activity that was part of the
same course of conduct or common scheme as the offense of
conviction.” United States v. Manigan, 592 F.3d 621, 628-29
(4th Cir. 2010) (internal quotation marks omitted).
Whether the district court properly applied the
enhancement under USSG § 2D1.1(b)(1) is reviewed for clear
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error. United States v. McAllister, 272 F.3d 228, 234 (4th Cir.
2001). Under a clear error standard of review, this court will
reverse only if “left with the definite and firm conviction that
a mistake has been committed.” United States v. Harvey, 532
F.3d 326, 336-37 (4th Cir. 2008) (internal quotation marks
omitted).
Aguilar-Rivera contends that the district court
improperly applied the enhancement because the only evidence
supporting it was hearsay evidence from a single officer who
recounted evidence and testimony from a co-conspirator’s trial
that Aguilar-Rivera shot and wounded two co-conspirators during
the course of the conspiracy. However, it is well-established
that “there is no bar to the use of hearsay at sentencing . . .
[and a] trial court may properly consider uncorroborated hearsay
evidence that the defendant has had an opportunity to rebut or
explain.” United States v. Alvarado Perez, ___ F.3d ___, ___
n.4, 2010 WL 2612677, at *12 n.4 (4th Cir. July 1, 2010)
(internal quotation marks and citation omitted). We have
reviewed the record with these standards in mind and conclude
that the district court did not clearly err by finding that a
preponderance of the evidence supported the firearm enhancement
under USSG § 2D1.1(b)(1).
The district court properly calculated Aguilar-
Rivera’s guidelines range in all other respects. We note,
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however, that the district court did not make an adequate
individualized assessment as required by Carter, 564 F.3d at
330. The district court provided no explanation for the
sentence imposed other than to state that it was imposing
sentence “[p]ursuant to the Sentencing Reform Act of 1984” and
United States v. Booker, 543 U.S. 220 (2005). Nonetheless,
because the district court sentenced Aguilar-Rivera within the
advisory guidelines range, this unpreserved error did not affect
his substantial rights. See United States v. Angle, 254 F.3d
514, 518 (4th Cir. 2001) (stating that, in the sentencing
context, an error affects substantial rights if the sentence
imposed “was longer than that to which he would otherwise be
subject”); see also Lynn, 592 F.3d at 580 (finding that
defendant’s substantial rights were not affected because he was
sentenced at the low end of the applicable guidelines range and
counsel did not argue for a sentence outside that range).
Having determined that there is no reversible
procedural error, the court must also consider the substantive
reasonableness of the sentence, taking into account the totality
of the circumstances. Gall, 552 U.S. at 51. Because Aguilar-
Rivera’s sentence is within the appropriate guidelines range, we
presume on appeal that it is reasonable. United States v. Go,
517 F.3d 216, 218 (4th Cir. 2008). The presumption may be
rebutted by a showing “that the sentence is unreasonable when
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measured against the § 3553(a) factors.” United States v.
Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal
quotation marks omitted). Aguilar-Rivera has not rebutted that
presumption. Accordingly, we hold that the district court
committed no significant procedural or substantive error in
sentencing Aguilar-Rivera.
Finally, in his pro se supplemental brief, Aguilar-
Rivera claims he received ineffective assistance of appellate
counsel. Claims of ineffective assistance of counsel are
generally not cognizable on direct appeal. See United States v.
King, 119 F.3d 290, 295 (4th Cir. 1997). Rather, to allow for
adequate development of the record, a defendant must bring such
claims in a 28 U.S.C.A. § 2255 (West Supp. 2010) motion, unless
the record conclusively establishes ineffective assistance.
United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999);
King, 119 F.3d at 295. Because the record does not conclusively
show that Aguilar-Rivera’s counsel was ineffective, we decline
to consider Aguilar-Rivera’s claims on direct appeal.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Aguilar-Rivera’s conviction and sentence.
Aguilar-Rivera’s motion for an extension of time to file a
second pro se supplemental brief is denied. This court requires
that counsel inform Aguilar-Rivera, in writing, of the right to
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petition the Supreme Court of the United States for further
review. If Aguilar-Rivera 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 Aguilar-Rivera. 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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