United States v. Reza , 403 F. App'x 863 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4288
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTONIO REZA,
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. (1:08-cr-00097-NCT-1)
Submitted: October 20, 2010 Decided: December 3, 2010
Before DUNCAN, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gregory Stuart Smith, LAW OFFICES OF GREGORY S. SMITH,
Washington, D.C., 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Unpublished opinions are not binding precedent in this circuit.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:
Antonio Reza pleaded guilty, pursuant to a written
plea agreement, to one count of possession with intent to
distribute cocaine hydrochloride in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(A) (2006). The district court sentenced
Reza to 152 months’ imprisonment. His attorney on appeal has
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), certifying that there are no meritorious issues for
appeal, but asking this court to review whether Reza’s guilty
plea was properly accepted, whether the district court properly
calculated and imposed Reza’s sentence, and whether Reza
received ineffective assistance of trial counsel. Although Reza
was notified of his right to file a pro se supplemental brief,
he has not done so. We affirm.
Because Reza did not move in the district court to
withdraw his guilty plea, any error in the Fed. R. Crim. P. 11
hearing is reviewed for plain error. United States v. Martinez,
277 F.3d 517, 525 (4th Cir. 2002). To establish plain error,
Reza “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) (reviewing
unpreserved Rule 11 error). “The decision to correct the error
lies within [this court’s] discretion, and we exercise that
discretion only if the error seriously affects the fairness,
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integrity or public reputation of judicial proceedings.” Id. at
343 (internal quotation marks omitted). Reza bears the burden
of showing plain error. Id.Our review of the record leads us to conclude that the
district court conducted a thorough colloquy well within the
mandates of Rule 11. The court ensured that the plea was
knowing, voluntary, and supported by an adequate factual basis.
We accordingly affirm Reza’s conviction.
Next, counsel questions the reasonableness of Reza’s
sentence. This court reviews the reasonableness of a sentence
under a deferential abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). The first step in this
review requires us to ensure that the district court “committed
no significant procedural error, such as failing to calculate
(or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) [(2006)] factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Id. We must then consider the substantive
reasonableness of the sentence, “tak[ing] into account the
totality of the circumstances.” Id. This court presumes on
appeal that a sentence within a properly calculated Guidelines
range is reasonable. United States v. Bynum, 604 F.3d 161, 168-
69 (4th Cir.), cert. denied, 130 S. Ct. 3442 (2010).
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We find no error by the district court. The court
properly calculated Reza’s Guidelines range. Moreover, the
court’s statements at Reza’s sentencing hearing reflect the
requisite individual assessment of the facts pertaining to his
sentence. We also find the sentence to be substantively
reasonable, as it is within the properly calculated Guidelines
range. Reza has not overcome the presumption that the sentence
is reasonable. See id.Finally, the claim that trial counsel may have
rendered ineffective assistance is more appropriately considered
in a post-conviction proceeding brought pursuant to 28 U.S.C.A.
§ 2255 (West Supp. 2010), unless counsel’s alleged deficiencies
appear conclusively on the record. See United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). Because we find
no conclusive evidence on the record that counsel rendered
ineffective assistance, we decline to consider this claim on
direct appeal.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Reza’s conviction and sentence. This court
requires that counsel inform Reza, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Reza requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
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may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Reza.
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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