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 2014-06

United States v. Hector Gutierrez , 576 F. App'x 278 ( 2014 )


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  •                              UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4424
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HECTOR ALVAREZ GUTIERREZ, a/k/a Cochiloco,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:12-cr-00317-NCT-3)
Submitted:   June 18, 2014                   Decided:   June 27, 2014
Before MOTZ, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
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Unpublished opinions are not binding precedent in this circuit.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:
Hector Alvarez Gutierrez pled guilty, pursuant to a
written plea agreement, to conspiracy to distribute more than
100    kilograms     of    marijuana,       in   violation    of
    21 U.S.C. § 846
    (2012).         The district court sentenced Gutierrez to sixty-six
months’        imprisonment.          On    appeal,      Gutierrez’s      counsel     has
submitted a brief pursuant to Anders v. California,
    386 U.S. 738
    (1967), certifying that there are no meritorious grounds for
appeal.        Gutierrez filed a pro se supplemental brief alleging
numerous       claims     of    ineffective      assistance      of     counsel.      We
affirm.
Because Gutierrez did not move in the district court
to withdraw his guilty plea, we review the Fed. R. Crim. P. 11
hearing for plain error.                 United States v. Martinez,
    277 F.3d 517
    , 525 (4th Cir. 2002); see Henderson v. United States,
    133 S. Ct. 1121
    ,      1126-27       (2013)     (discussing     standard      of   review).
Although the district court neglected to inform Gutierrez of its
power to order asset forfeiture, we conclude that the court’s
minor omission did not affect Gutierrez’s substantial rights.
See United States v. Massenburg,
    564 F.3d 337
    , 343 (4th Cir.
2009).     Moreover, the district court ensured that Gutierrez’s
plea     was     knowing       and   voluntary     and    that     a    factual     basis
supported the plea.             Accordingly, we conclude that the district
court substantially complied with Rule 11.
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We review a sentence for reasonableness, applying “an
abuse-of-discretion standard.”                       Gall v. United States,
    552 U.S. 38
    ,    51       (2007).         In    so     doing,      we    examine          the     sentence       for
“significant            procedural         error.”
    Id.
            If    there        is    none,    we
“consider the substantive reasonableness of the sentence . . . ,
tak[ing] into account the totality of the circumstances.”
    Id.
    After       a    thorough       review        of    the       sentencing          proceedings,          we
conclude         that    Gutierrez’s          sentence         is    procedurally             reasonable
and    that       his    within-Guidelines              sentence           is    entitled        to    the
presumption of reasonableness.                           See United States v. Montes-
Pineda,
    445 F.3d 375
    ,     379       (4th        Cir.        2006)     (explaining
presumption of reasonableness).
Lastly, turning to Gutierrez’s claims of ineffective
assistance of counsel, such claims “are generally not cognizable
on direct appeal.”               United States v. Benton,
    523 F.3d 424
    , 435
(4th Cir. 2008); see United States v. King,
    119 F.3d 290
    , 295
(4th Cir. 1997).             Instead, to allow for adequate development of
the record, a defendant must ordinarily bring his claims in a
    28 U.S.C. § 2255
     (2012) motion.                        King,
    119 F.3d at 295
    .                      However,
we    may       entertain       such       claims     on      direct       appeal       only     if    “it
conclusively appears from the record that defense counsel did
not     provide         effective           representation.”                    United        States   v.
Richardson,
    195 F.3d 192
    , 198 (4th Cir. 1999).                                          See generally
Strickland         v.    Washington,
    466 U.S. 668
    ,       687    (1984)        (setting
3
forth    standard).             Because     none     of     Gutierrez’s      alleged
ineffective assistance of counsel claims conclusively appears on
the record, we decline to address them in this appeal.
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      and    deny
counsel’s pending motion to withdraw.                This court requires that
counsel inform Gutierrez, in writing, of the right to petition
the Supreme Court of the United States for further review.                          If
Gutierrez       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 Gutierrez.              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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