United States v. Jose Galindo , 519 F. App'x 812 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4100
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSE ANGEL GUERRERO GALINDO,
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. (1:11-cr-00124-NCT-2)
Submitted: March 20, 2013 Decided: April 3, 2013
Before AGEE, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,
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Unpublished opinions are not binding precedent in this circuit.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:
Jose Guerrero Galindo pled guilty pursuant to a
written plea agreement to conspiracy to distribute cocaine
hydrochloride in violation of 21 U.S.C. § 846 (2006) and
possession of firearms in furtherance of a drug trafficking
crime in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), 2 (2006).
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 questioning the reasonableness
of Galindo’s sentence. Galindo filed a pro se supplemental
brief, alleging generally that his due process rights were
violated because he was not provided with Spanish language
materials and that his trial counsel was ineffective. Finding
no error, we affirm.
We review sentences 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)
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factors, selected a sentence based on clearly erroneous facts,
and sufficiently explained the selected sentence. Id. at 49-51.
Galindo’s appellate counsel first questions whether
Galindo’s sentence is procedurally reasonable. Specifically,
counsel questions whether the district court erred by applying a
leadership enhancement pursuant to United States Sentencing
Guidelines “USSG” § 3B1.1(a) (2011), an enhancement for
operating a drug house pursuant to USSG § 2D1.1(b)(12), by
attributing fifty kilograms of cocaine to Galindo, and by
failing to adequately consider and explain the application to
Galindo of the statutory factors set forth in 18 U.S.C.
§ 3553(a). Upon careful review of the record, we find no
procedural error.
If a sentence is free of significant procedural error,
we then review it for substantive reasonableness, “tak[ing] into
account the totality of the circumstances.” Gall, 552 U.S. at
51. “When rendering a sentence, the district court must make an
individualized assessment based on the facts presented,” United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal
quotation marks and emphasis omitted), and must “adequately
explain the chosen sentence to allow for meaningful appellate
review and to promote the perception of fair sentencing.” Gall,
552 U.S. at 50. If the sentence is within the properly
calculated Guidelines range, this court applies a presumption on
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appeal that the sentence is substantively reasonable. United
States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).
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 light of
the presumption of reasonableness that attaches to Galindo’s
within Guidelines sentence, we conclude that the sentence
selected was not substantively infirm.
In his pro se supplemental brief Galindo contends that
his plea was not knowing and voluntary because he was not
provided with Spanish-language documentation or Spanish-language
legal materials. See McCarthy v. United States, 394 U.S. 459,
466 (1969) (holding that, if a plea is not “voluntary and
knowing, it has been obtained in violation of due process and is
therefore void”). Because Galindo did not bring these concerns
to the attention of the district court, we review for plain
error. See United States v. Olano, 507 U.S. 725, 732 (1993)
(holding that unpreserved error is to be reviewed under the
plain error standard). We conclude that the record demonstrates
that the district court did not commit plain error by accepting
Galindo’s plea. Galindo stated that he understood the
proceedings, participated meaningfully in the Rule 11 hearing,
and ultimately admitted his guilt. See United States v. Rubio,
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677 F.3d 1257, 1260-62 (D.C. Cir. 2012) (holding that the
defendant could not establish that her plea was involuntary on
the basis of a Spanish language barrier when the record
indicated that she had understood proceedings). *
Finally, Galindo contends that he was denied the
effective assistance of counsel. Claims of ineffective
assistance of counsel are generally not cognizable on direct
appeal unless the record clearly demonstrates ineffectiveness.
United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006);
see also United States v. King, 119 F.3d 290, 295 (4th Cir.
1997) (“[I]t is well settled that a claim of ineffective
assistance should be raised in a 28 U.S.C. § 2255 motion in the
district court rather than on direct appeal, unless the record
conclusively shows ineffective assistance.”) (internal quotation
marks omitted). Upon review of the record, we conclude that it
does not conclusively show that Galindo’s counsel was
ineffective, and accordingly decline to consider this issue on
direct appeal.
*
Galindo also raises numerous questions inviting this court
to go beyond the scope of an Anders review and determine the
legality of the warrant against him, the evidentiary chain of
custody, and whether drug residue was present on his clothing,
among others. We conclude that these contentions are moot in
light of Galindo’s guilty plea, and that no plain error
connected with any of Galindo’s contentions appears on the face
of the record.
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In accordance with Anders, we have reviewed 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 Galindo, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Galindo 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 Galindo.
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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