United States v. Torres , 304 F. App'x 141 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4656
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ABRAHAM HERNANDEZ TORRES, a/k/a Beto, a/k/a Chavez,
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. (3:07-cr-00233-RJC-2)
Submitted: December 11, 2008 Decided: December 17, 2008
Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John J. Cacheris, DOZIER, MILLER, POLLARD & MURPHY, LLP,
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Unpublished opinions are not binding precedent in this circuit.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:
Abraham Hernandez Torres pleaded guilty, pursuant to a
plea agreement, to one count of conspiracy to possess with
intent to distribute heroin and cocaine, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2006). The district court
sentenced him to 121 months of imprisonment, and Torres timely
appealed.
On appeal, counsel filed an Anders 1 brief, in which he
states there are no meritorious issues for appeal, but questions
whether Torres waived his right to appeal, and whether the
district court erred in denying Torres’ motion for a downward
variance sentence. The Government declined to file a brief. We
affirm.
Because the Government declined to argue that Torres’
plea agreement appeal waiver bars his appeal, we do not consider
sua sponte the effect of the waiver. United States v. Blick,
408 F.3d 162, 168 (4th Cir. 2005).
We review a sentence imposed by the district court for
procedural and substantive reasonableness under an abuse-of-
discretion standard. Gall v. United States, 128 S. Ct. 586, 597
(2007). The court considers the totality of the circumstances
in assessing the substantive reasonableness of a sentence. Id.1
Anders v. California, 386 U.S. 738 (1967).
2
This court presumes that a sentence imposed within the properly
calculated Guidelines range is reasonable. United States v. Go,
517 F.3d 216, 218 (4th Cir. 2008); see Rita v. United States,
127 S. Ct. 2456, 2462-69 (2007) (upholding presumption of
reasonableness for within-Guidelines sentence). In considering
the district court’s application of the Guidelines, this court
reviews factual findings for clear error and legal conclusions
de novo. United States v. Allen, 446 F.3d 522, 527 (4th Cir.
2006).
The district court correctly calculated Torres’
Guidelines 2 range and imposed a sentence within that range and
within the statutory maximum. The 121-month sentence is one
month greater than the applicable statutory minimum of 120
months. See 21 U.S.C. § 841(b)(1)(A). In the absence of a
Government motion for a departure, the district court lacked
authority to sentence Torres below the statutory minimum.
United States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005). 3
Our review of the record leads us to conclude that Torres’
sentence is reasonable.
2
U.S. Sentencing Guidelines Manual (2007).
3
Counsel suggests that the court could revisit the decision
in Robinson. A panel of this court may not, however, overrule a
prior published decision of the court. See United States v.
Ruhe, 191 F.3d 376, 388 (4th Cir. 1999).
3
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We have reviewed the arguments asserted in Torres’ pro se
supplemental brief and find them to be without merit. We
therefore affirm Torres’ conviction and sentence. This court
requires that counsel inform Torres, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Torres 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 Torres.
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
4