United States v. Daniel Cortez-Meza , 457 F. App'x 313 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4346
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL CORTEZ-MEZA, a/k/a Daniel Herrera,
Defendant - Appellant.
No. 10-4347
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEJANDRO ZAVALA-LOPEZ, a/k/a Alejandro Zavala,
Defendant - Appellant.
No. 10-4573
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS ALEX HERNANDEZ-RODRIGUEZ, a/k/a Alex, a/k/a Sergio
Mendoza Gallardo,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Columbia. Cameron McGowan Currie,
District Judge. (3:09-cr-00390-CMC-7; 3:09-cr-00390-CMC-8;
3:09-cr-00390-CMC-2)
Submitted: November 28, 2011 Decided: December 13, 2011
Before WILKINSON, MOTZ, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ola A. Johnson, Lexington, South Carolina; Debra Y. Chapman,
DEBRA Y. CHAPMAN, PA, Columbia, South Carolina; Jonathan M.
Milling, MILLING LAW FIRM, LLC, Columbia, South Carolina, for
Appellants. Robert Claude Jendron, Jr., Mark C. Moore,
Assistant United States Attorneys, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Daniel Cortez-Meza and Alejandro Zavala-Lopez pled
guilty, pursuant to written plea agreements, to conspiracy to
distribute five kilograms or more of cocaine, in violation of 21
U.S.C. § 846 (2006), and possession with the intent to
distribute a quantity of cocaine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C) (2006). Carlos Hernandez-Rodriguez pled
guilty, pursuant to a written plea agreement, to conspiracy to
distribute 50 grams or more of methamphetamine, 5 kilograms or
more of cocaine, and 500 grams or more of a mixture containing a
detectable amount of methamphetamine, in violation of 21 U.S.C.
§ 846, and conspiracy to commit money laundering, in violation
of 18 U.S.C. § 1956(h) (2006). Both Cortez-Meza and Zavala-
Lopez were sentenced to the 120-month statutory minimum sentence
for their crimes. Hernandez-Rodriguez was sentenced to 240
months’ imprisonment, a downward variance from the Guidelines
range.
Appellants’ attorneys submitted a consolidated brief
in accordance with Anders v. California, 386 U.S. 738 (1967),
questioning the adequacy of Appellants’ Fed. R. Crim. P. 11
hearings and whether Appellants’ sentences are reasonable.
Although each Appellant received notice of his right to file a
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pro se supplemental brief, only Zavala-Lopez did so. 1 Because we
find no meritorious grounds for appeal, we affirm the district
court’s judgments.
Appellants first question whether the district court
adequately advised them during their Rule 11 hearings. Prior to
accepting a guilty plea, a district court must conduct a plea
colloquy in which it informs the defendant of, and determines
that the defendant comprehends, the nature of the charge to
which he is pleading guilty, any mandatory minimum penalty, the
maximum possible penalty he faces, and the rights he is
relinquishing by pleading guilty. Fed. R. Crim. P. 11(b);
United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
Additionally, the district court “must determine that there is a
factual basis for the plea.” Fed. R. Crim. P. 11(b)(3).
Finally, the district court must ensure that the defendant’s
plea was voluntary and did not result from force, threats, or
promises not contained in the plea agreement. Fed. R. Crim. P.
11(b)(2). “In reviewing the adequacy of compliance with Rule
11, this Court should accord deference to the trial court’s
1
With regard to Zavala-Lopez’s claim of ineffective
assistance of counsel, we decline to address this claim because
it is not cognizable on direct appeal where, as here, there is
no conclusive evidence supporting his claim apparent on the face
of the record. United States v. King, 119 F.3d 290, 295 (4th
Cir. 1997).
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decision as to how best to conduct the mandated colloquy with
the defendant.” DeFusco, 949 F.2d at 116.
Because Appellants did not move in the district court
to withdraw their guilty pleas, any error in the Rule 11
hearings is reviewed for plain error. United States v.
Martinez, 277 F.3d 517, 525 (4th Cir. 2002). To establish plain
error, Appellants “must show: (1) an error was made; (2) the
error is plain; and (3) the error affects substantial rights.”
United States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir.
2009). However, “[t]he decision to correct the error lies
within our discretion, and we exercise that discretion only if
the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. at 343 (internal
quotation marks omitted).
We have thoroughly reviewed the records in this case
and conclude that the district court fully complied with Rule 11
in accepting guilty pleas from Cortez-Meza and Zavala-Lopez.
Although the district court made one minor omission in
Hernandez-Rodriguez’s plea hearing by failing to inform him of
the penalties for perjury if he lied under oath, that omission
did not affect Hernandez-Rodriguez’s substantial rights. See
id. at 344 (“[T]he mere existence of an error cannot satisfy the
requirement that [defendant] show that his substantial rights
were affected.”). Moreover, each Appellant’s plea was knowing
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and voluntary, and each plea was adequately supported by a
factual basis. See DeFusco, 949 F.2d at 116, 119-20.
Appellants also question the reasonableness of their
sentences. This court reviews a sentence for reasonableness
applying an abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). In determining the procedural
reasonableness of a sentence, we consider whether the district
court properly calculated the Guidelines range, treated the
Guidelines as advisory, considered the § 3553(a) factors,
analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Id. Finally, we
review the substantive reasonableness of the sentence,
“examin[ing] the totality of the circumstances.” United States
v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).
Because Appellants did not request a sentence
different than the sentences ultimately imposed, the sentences
are reviewed for plain error. United States v. Lynn, 592 F.3d
572, 578 (4th Cir. 2010); see Massenburg, 564 F.3d at 342-43(discussing plain error standard). Here, the district court
followed the necessary procedural steps in sentencing
Appellants, properly calculating the Guidelines range,
considering the § 3553(a) factors, and sentencing each Appellant
to the very sentence he requested: in the cases of Cortez-Meza
and Zavala-Lopez, to the mandatory minimum sentences, and in the
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case of Hernandez-Rodriguez, a downward variant sentence well
below his advisory Guidelines range. 2 Hence, we conclude that
the sentences imposed by the district court were reasonable.
In accordance with Anders, we have reviewed the record
in these cases and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgments. This court
requires that counsel inform Appellants in writing of the right
to petition the Supreme Court of the United States for further
review. If Appellants request that such petitions be filed, but
counsel believes that the petitions 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 the respective Appellant.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
2
In his pro se brief, Zavala-Lopez contends the district
court failed to make a proper drug quantity finding and failed
to adequately explain the basis for the sentence it imposed. We
have carefully considered Zavala-Lopez’s arguments and conclude
they are without merit.
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