United States v. Regino Salas-Cruz , 512 F. App'x 361 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4421
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
REGINO SALAS-CRUZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:10-cr-00128-RJC-1)
Submitted: February 20, 2013 Decided: February 28, 2013
Before SHEDD, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kenneth Darwin Snow, THE SNOW LEGAL GROUP, PLLC, Charlotte,
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Unpublished opinions are not binding precedent in this circuit.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:
Regino Salas-Cruz pleaded guilty pursuant to a plea
agreement to conspiracy to distribute and possess with intent to
distribute at least one kilogram of heroin, in violation of 21
U.S.C. §§ 846, 841(b)(1)(A) (2006). The district court
sentenced Salas-Cruz to seventy months’ imprisonment. On
appeal, counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), certifying that there are no
meritorious issues for appeal, but questioning whether the
district court sufficiently explained the imposed sentence. In
Salas-Cruz’s pro se supplemental brief, he argues that his trial
counsel was ineffective in failing to adequately advise him
regarding his guilty plea, and he attempts to clarify that his
involvement in the conspiracy was minor. The Government
declined to file a responsive brief. Following a careful review
of the record, we affirm.
Because Salas-Cruz did not move in the district court
to withdraw his guilty plea, we review the Rule 11 hearing for
plain error. United States v. Martinez, 277 F.3d 517, 525 (4th
Cir. 2002). To prevail under this standard, Salas-Cruz must
establish that an error occurred, was plain, and affected his
substantial rights. United States v. Massenburg, 564 F.3d 337,
342-43 (4th Cir. 2009). Our review of the record establishes
that the district court substantially complied with Rule 11’s
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requirements, ensuring that Salas-Cruz’s plea was knowing and
voluntary.
We review Salas-Cruz’s sentence under a deferential
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 the sentence. Id.;
United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). After
determining whether the district court correctly calculated the
advisory Guidelines range, we must decide whether the court
considered the § 3553(a) factors, analyzed the arguments
presented by the parties, and sufficiently explained the
selected sentence. Lynn, 592 F.3d at 575-76; United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009).
Once we have determined that the sentence is free of
procedural error, we consider the substantive reasonableness of
the sentence, “tak[ing] into account the totality of the
circumstances.” Gall, 552 U.S. at 51; Lynn, 592 F.3d at 575.
If the sentence is within the appropriate Guidelines range, we
apply a presumption on appeal that the sentence is reasonable.
United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir.
2010). Such a presumption is rebutted only if the defendant
demonstrates “that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
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445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks
omitted).
We conclude that the district court committed neither
procedural nor substantive error in sentencing. The court
verified that Salas-Cruz discussed the presentence report with
his attorney, ensured that Salas-Cruz had no objections to the
presentence report, and heard argument from counsel and
allocution from Salas-Cruz. The court accurately calculated and
considered as advisory Salas-Cruz’s applicable Guidelines range.
The district court also considered the § 3553(a) factors and
explained that the within-Guidelines sentence was warranted in
light of Salas-Cruz’s lack of criminal history, the seriousness
of the offense, and Salas-Cruz’s involvement in the conspiracy.
Further, neither counsel nor Salas-Cruz offers any grounds to
rebut the presumption on appeal that the within-Guidelines
sentence of seventy months’ imprisonment is substantively
reasonable. Accordingly, we conclude that the district court
did not abuse its discretion in sentencing Salas-Cruz.
In his pro se brief, Salas-Cruz asserts that his trial
counsel rendered ineffective assistance. Claims of ineffective
assistance of counsel are generally not cognizable on direct
appeal, unless the record conclusively establishes counsel’s
“objectively unreasonable performance” and resulting prejudice.
United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). The
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record does not conclusively establish that trial counsel
rendered ineffective assistance to Salas-Cruz. Salas-Cruz must
therefore bring his allegation of ineffective assistance of
counsel in a 28 U.S.C.A. § 2255 (West Supp. 2012) motion, should
he wish to pursue such a claim. United States v. Baptiste, 596
F.3d 214, 216 n.1 (4th Cir. 2010).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Salas-Cruz’s conviction and
sentence. This court requires that counsel inform Salas-Cruz,
in writing, of the right to petition the Supreme Court of the
United States for further review. If Salas-Cruz 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 Salas-Cruz.
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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