United States v. Cesar Linares , 578 F. App'x 265 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4084
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CESAR ANDRES LINARES,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:13-cr-00164-TDS-1)
Submitted: July 8, 2014 Decided: July 16, 2014
Before MOTZ and GREGORY, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Walter C. Holton, Jr., HOLTON LAW FIRM, PLLC, Winston-Salem,
North Carolina, for Appellant. Sandra Jane Hairston, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cesar Andres Linares pled guilty pursuant to a plea
agreement to one count of possession with intent to distribute
1000 kilograms or more of marijuana, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(A) (2012). The district court calculated
Linares’ Guidelines range at 121 to 151 months’ imprisonment,
U.S. Sentencing Guidelines Manual (2013), and sentenced him to
121 months’ imprisonment. On appeal, counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious issues for appeal, but raising as
an issue for review whether the district court abused its
discretion in imposing sentence. Linares was informed of his
right to file a pro se supplemental brief, but he has not done
so. The Government declined to file a brief. We affirm.
We review Linares’ sentence for reasonableness “under
a deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41, 51 (2007). This review entails
appellate consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51. In determining
procedural reasonableness, we consider whether the district
court properly calculated the defendant’s advisory Guidelines
range, gave the parties an opportunity to argue for an
appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012)
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factors, selected a sentence based on clearly erroneous facts,
and sufficiently explained the selected sentence. Id. at 49–51.
If the sentence is free of “significant procedural
error,” we review it for substantive reasonableness, “tak[ing]
into account the totality of the circumstances.” Id. at 51.
If the sentence is within the properly calculated Guidelines
range, we apply a presumption on appeal that the sentence is
substantively reasonable. United States v. Susi, 674 F.3d 278,
289 (4th Cir. 2012). Such a presumption is rebutted only if 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) (internal quotation marks
omitted).
In this case, the district court correctly calculated
and considered the advisory Guidelines range, heard argument
from counsel, and afforded Linares the opportunity to allocute.
The court explained that the 121-month sentence was warranted in
light of the nature and circumstances of Linares’ offense
conduct, his history and characteristics, and the need for the
sentence to reflect the seriousness of his offense conduct, to
promote respect for the law, to provide just punishment, to
afford adequate deterrence to criminal conduct, and to protect
the public. 18 U.S.C. § 3553(a)(1), (2)(A)-(C).
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Counsel argues that the 121-month sentence is
unreasonable because the district court did not “properly weigh”
Linares’ cooperation with law enforcement. We reject this
argument because it essentially asks this court to substitute
its judgment for that of the district court. While this court
may have weighed the § 3553(a) factors differently had it
imposed sentence in the first instance, we defer to the district
court’s decision that a 121-month sentence achieved the purposes
of sentencing in Linares’ case. See Gall, 552 U.S. at 51(explaining that appellate courts “must give due deference to
the district court’s decision that the § 3553(a) factors, on a
whole, justify” the sentence imposed); United States v.
Rivera-Santana, 668 F.3d 95, 105 (4th Cir. 2012) (stating it was
within district court’s discretion to accord more weight to a
host of aggravating factors in defendant’s case and decide that
the sentence imposed would serve the § 3553 factors on the
whole); United States v. Jeffery, 631 F.3d 669, 679 (4th Cir.
2011) (“[D]istrict courts have extremely broad discretion when
determining the weight to be given each of the § 3553(a)
factors.”). Counsel thus fails to rebut the presumption on
appeal that Linares’ within-Guidelines sentence is substantively
reasonable. Accordingly, we conclude that the district court
did not abuse its discretion in sentencing Linares.
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In accordance with Anders, we have reviewed the
remainder of the record in this case and have found no
meritorious issues for appeal. We therefore affirm the district
court’s judgment. This court requires that counsel inform
Linares, in writing, of the right to petition the Supreme Court
of the United States for further review. If Linares 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 Linares.
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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