United States v. Espinosa , 303 F. App'x 141 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4703
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAUL ALFREDO ESPINOSA,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Sr.,
Senior District Judge. (1:06-cr-00359)
Submitted: September 30, 2008 Decided: December 16, 2008
Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John J. Korzen, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-
Salem, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, L. Patrick Auld, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raul Espinosa appeals his conviction and 262-month
sentence after he pled guilty to possession with intent to
distribute twenty-five kilograms of cocaine, in violation of 21
U.S.C. § 841(a)(1) (2000). Espinosa’s 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
whether the district court erred by denying Espinosa’s motion to
withdraw his guilty plea and whether the sentence is reasonable.
Espinosa was informed of his right to file a pro se supplemental
brief but has not done so. Finding no reversible error, we
affirm.
Counsel first challenges the district court’s denial
of Espinosa’s motion to withdraw his guilty plea, contending
that Espinosa did not enter his guilty plea knowingly and
voluntarily because he relied on improper advice from counsel
based on the evidence obtained during an allegedly illegal
search. Counsel also argues that, in light of the illegal
search, Espinosa is legally innocent. Next, counsel contends
that the assistant federal public defender who represented
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Espinosa during the plea proceedings provided ineffective
assistance by failing to file a motion to suppress. ∗
Withdrawal of a guilty plea is not a matter of right.
United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).
The defendant bears the burden of showing a “fair and just
reason” for the withdrawal of his guilty plea. Fed. R. Crim. P.
11(d)(2)(B). “[A] ‘fair and just’ reason . . . is one that
essentially challenges . . . the fairness of the Rule 11
proceeding . . . .” United States v. Lambey, 974 F.2d 1389,
1394 (4th Cir. 1992) (en banc). An appropriately conducted Rule
11 proceeding, however, “raise[s] a strong presumption that the
plea is final and binding.” Id. at 1394.
Here, the district court applied the factors courts
must consider in determining whether to permit withdrawal of a
guilty plea. See Ubakanma, 215 F.3d at 424. Our review of the
record convinces us that the district court did not abuse its
discretion in denying Espinosa’s motion to withdraw. United
∗
To the extent that Espinosa raises an ineffective
assistance of counsel claim unrelated to the withdrawal of his
guilty plea, such claim should be raised in a motion under 28
U.S.C.A. § 2255 (West Supp. 2008), and not on direct appeal,
unless the record conclusively shows that counsel was
ineffective. United States v. Baldovinos, 434 F.3d 233, 239
(4th Cir. 2006). Here, the record does not demonstrate
conclusively counsel’s ineffectiveness.
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States v. Dyess, 478 F.3d 224, 237 (4th Cir. 2007) (stating
standard of review). We therefore affirm the conviction.
Counsel also questions whether Espinosa’s 262-month
sentence is reasonable. This court reviews the sentence imposed
by the district court for abuse of discretion. Gall v. United
States, 128 S. Ct. 586, 597 (2007). If the appellate court
concludes that the sentence is “procedurally sound,” the court
then considers the substantive reasonableness of the sentence.
Id. 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 light of Gall, we find that Espinosa’s sentence is
reasonable. First, the district court committed no procedural
error, appropriately treating the guidelines as advisory and
considering the guidelines range and the factors in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2008), before imposing a 262-month
prison term, a sentence at the bottom of the guidelines range.
Applying the presumption of reasonableness and finding that
Espinosa has failed to rebut the presumption on appeal, we
conclude that his 262-month sentence is reasonable. See Go, 517
F.3d at 218; see also Rita, 127 S. Ct. at 2462-69.
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In accordance with Anders, we have reviewed the record
for any meritorious issues for appeal and have found none.
Thus, we affirm the district court’s judgment. This court
requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for
further review. If the client 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 the client. 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
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