United States v. Reynoso , 225 F. App'x 166 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4783
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTONIO REYNOSO,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (5:03-cr-70006-SGW)
Submitted: April 26, 2007 Decided: April 30, 2007
Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jay K. Wilk, Woodstock, Virginia, for Appellant. William Frederick
Gould, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Reynoso pled guilty to conspiracy to possess with
intent to distribute fifty grams or more of cocaine base (crack)
and five kilograms of cocaine,1 21 U.S.C. § 846 (2000), and was
sentenced to a term of 262 months imprisonment. Reynoso’s attorney
has filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), raising two issues but stating that, in his view, there are
no meritorious issues for appeal. Reynoso has filed a pro se
supplemental brief raising additional issues. We affirm.
At sentencing, the district court adopted the presentence
report without objection. Both the government and Reynoso’s
attorney asked the court to impose sentence at the low end of the
advisory guideline range of 262-327 months, and the court complied.
In the Anders brief, counsel suggests that the sentence was
unreasonable and that the court should have departed below the
guideline range pursuant to U.S. Sentencing Guidelines Manual
§ 5H1.6, p.s. (2005), due to Reynoso’s extensive family ties and
responsibilities. We discern no error. Reynoso did not request a
departure, and a sentence within a properly calculated advisory
guideline range is presumptively reasonable. United States v.
Johnson, 445 F.3d 339, 341 (4th Cir. 2006).
1
The judgment order inaccurately states that Reynoso pled
guilty to conspiracy to distribute and possess with intent to
distribute 500 grams or more of cocaine base.
- 2 -
In his pro se brief, Reynoso claims that the Fifth and
Sixth Amendments were violated when the district court found that
he was responsible for a quantity of crack in excess of the amount
charged in the indictment. Because Reynoso was sentenced under an
advisory guideline scheme, no constitutional error occurred.
United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). He
also argues that the court plainly erred in awarding him a
four-level leadership role adjustment, USSG § 3B1.1(a); however,
the presentence report contained uncontested information that
supported the adjustment. Finally, Reynoso claims that his
sentence was unreasonable because a co-defendant’s sentence of 360
months was later reduced on the government’s motion. “[A]
defendant can only rebut the presumption of reasonableness by
demonstrating that the sentence is unreasonable when measured
against the § 3553(a)[2] factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks and
citation omitted), petition for cert. filed, __ U.S.L.W. __ (U.S.
July 21, 2006) (No. 06-5439). Reynoso has not met that burden.
Pursuant to Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
the conviction and sentence. 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
2
18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006).
- 3 -
requests that such 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
- 4 -