United States v. Hector Lopez-Gutierrez , 501 F. App'x 263 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4188
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HECTOR LOPEZ-GUTIERREZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:10-cr-00032-RLV-8)
Submitted: December 13, 2012 Decided: December 21, 2012
Before DAVIS, KEENAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dianne J. McVay, JONES MCVAY FIRM, 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Unpublished opinions are not binding precedent in this circuit.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:
Pursuant to a written plea agreement, Hector Lopez-
Gutierrez pled guilty to conspiracy to distribute and to possess
with intent to distribute methamphetamine, in violation of 21
U.S.C. § 846 (2006). The district court sentenced Lopez-
Gutierrez to 210 months’ imprisonment. Lopez-Gutierrez’s
counsel has submitted a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious grounds for appeal but questioning whether the
district court erred when it calculated Lopez-Gutierrez’s
Guidelines range and whether the sentence is substantively
reasonable. Lopez-Gutierrez has filed a supplemental pro se
brief that challenges the voluntariness of his guilty plea and
the district court’s calculation of his Guidelines range. We
affirm.
Although Lopez-Gutierrez challenges the voluntariness
of his guilty plea, his sworn statements during the plea
colloquy contradict his arguments on appeal. Absent
“extraordinary circumstances, the truth of sworn statements made
during a [Fed. R. Crim. P.] 11 colloquy is conclusively
established.” United States v. Lemaster, 403 F.3d 216, 221-22
(4th Cir. 2005). “[W]hen a defendant says he lied at the Rule
11 colloquy, he bears a heavy burden in seeking to nullify the
process.” United States v. Bowman, 348 F.3d 408, 417 (4th Cir.
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2003). We have reviewed the contentions on appeal and are
satisfied that Lopez-Gutierrez has not met his burden of showing
that he lied during the plea colloquy. We therefore conclude
that Lopez-Gutierrez’s plea was knowing and voluntary.
Turning to Lopez-Gutierrez’s challenge to his
sentence, we review for reasonableness, applying an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). This review requires appellate consideration of both
the procedural and substantive reasonableness of a sentence.
Id.
Lopez-Gutierrez’s counsel questions whether the
district court erred in finding that the drugs attributable to
Lopez-Gutierrez were actual methamphetamine. “We review the
district court’s calculation of the quantity of drugs
attributable to a defendant for sentencing purposes for clear
error.” United States v. Slade, 631 F.3d 185, 188 (4th Cir.)
(internal quotation marks omitted), cert. denied, 131 S. Ct.
2943 (2011). We reverse “only if we are left with the definite
and firm conviction that a mistake has been committed.” United
States v. Jeffers, 570 F.3d 557, 570 (4th Cir. 2009) (internal
quotation marks omitted). We have reviewed the contentions on
appeal and are satisfied that the district court did not clearly
err in attributing actual methamphetamine to Lopez-Gutierrez.
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Second, counsel questions whether the district court
erred when it enhanced Lopez-Gutierrez’s base offense level by
two levels for possession of a firearm. A two-level increase in
a defendant’s offense level is warranted “[i]f a dangerous
weapon (including a firearm) was possessed.” U.S. Sentencing
Guidelines Manual (“USSG”) § 2D1.1(b)(1) (2010). The defendant
bears the burden to show that a connection between his
possession of a firearm and his narcotics offense is “clearly
improbable.” United States v. Harris, 128 F.3d 850, 852-53 (4th
Cir. 1997) (internal quotation marks omitted). We conclude that
Lopez-Gutierrez has not met his burden of establishing that a
connection between his possession of a firearm and his offense
was clearly improbable and that the district court’s finding was
not clearly erroneous.
Third, counsel questions whether the district court
erred when it found that Lopez-Gutierrez was not eligible for
the safety valve reduction in USSG § 5C1.2(a). The defendant
has the burden of showing that he meets all five criteria for
application of the safety valve reduction. United States v.
Henry, 673 F.3d 285, 292-93 (4th Cir.), cert. denied, 133 S. Ct.
182 (2012). Lopez-Gutierrez provided no evidence to establish
that he did not actually possess a weapon or that he gave a
qualifying statement. We therefore conclude that the district
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court’s refusal to apply the safety valve reduction was not
clearly erroneous.
Fourth, counsel questions whether the district court
erred in determining that Lopez-Gutierrez was not a minor
participant in the conspiracy and, therefore, not eligible for a
two-level reduction in his offense level. The Guidelines permit
a two-level mitigating role reduction if the defendant was a
minor participant in any criminal activity. USSG § 3B1.2(b).
We have reviewed the contentions raised on appeal and are
satisfied that the district court did not clearly err in
declining to label Lopez-Gutierrez as a minor participant in the
conspiracy.
Finally, counsel questions the substantive
reasonableness of Lopez-Gutierrez’s sentence because the
district court declined to vary below the Guidelines range. As
the district court sentenced Lopez-Gutierrez within the properly
calculated Guidelines range, we apply a presumption on appeal
that the sentence is reasonable. See United States v. Mendoza—
Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). Such a presumption
is rebutted only by showing “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). Because Lopez-Gutierrez has not met
his burden of showing that his sentence is unreasonable when
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measured against the § 3553(a) factors, we conclude that the
district court did not abuse its discretion in imposing the 210-
month sentence.
In accordance with Anders, we have reviewed the entire
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 Lopez-Gutierrez, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Lopez-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 Lopez-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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