United States v. Cesar Vargas-Torres , 583 F. App'x 153 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4911
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CESAR VARGAS-TORRES, a/k/a Cotonete Cotono,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:11-cr-00003-RJC-2)
Submitted: August 29, 2014 Decided: September 9, 2014
Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:
Cesar Vargas-Torres appeals his conviction and
sentence for conspiracy to distribute and to possess with intent
to distribute at least five kilograms of cocaine, in violation
of 21 U.S.C. § 846 (2012). Vargas-Torres pled guilty pursuant
to a written plea agreement and was sentenced to 121 months’
imprisonment and five years of supervised release. On appeal,
counsel for Vargas-Torres has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), asserting that there are no
meritorious issues for appeal but questioning whether Vargas-
Torres’ sentence was reasonable. Vargas-Torres has filed a
supplemental pro se brief arguing that his sentence was
unreasonable and that his trial counsel rendered ineffective
assistance. We affirm Vargas-Torres’ conviction and sentence.
Vargas-Torres contends that the district court
erroneously sentenced him to 121 months’ imprisonment rather
than to the statutory minimum of 120 months. We review his
sentence for reasonableness under an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). We
must first ensure that the district court did not commit any
“significant procedural error,” such as failing to properly
calculate the applicable Guidelines range, failing to consider
the 18 U.S.C. § 3553(a) (2012) factors, or failing to adequately
explain the sentence. Id. The district court is not required
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to “robotically tick through § 3553(a)’s every subsection,”
United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006), but
“must place on the record an individualized assessment based on
the particular facts of the case before it.” United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation
marks omitted). Only if we find the sentence procedurally
reasonable can we consider its substantive reasonableness. Id.
at 328.
In assessing substantive reasonableness, we must “take
into account the totality of the circumstances.” Gall, 552 U.S.
at 51. We presume on appeal that a sentence within the properly
calculated Guidelines range is substantively reasonable. United
States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008). Such a
presumption is rebutted only when the defendant shows “that the
sentence is unreasonable when measured against the § 3553(a)
factors.” United States v. Montes-Pineda, 445 F.3d 375, 379
(4th Cir. 2006). We have reviewed the record before us and
conclude that Vargas-Torres’ sentence is both procedurally and
substantively reasonable.
In his pro se supplemental brief, Vargas-Torres avers
that counsel’s representation was deficient in several respects.
However, the record does not conclusively establish any
deficiencies. See United States v. Benton, 523 F.3d 424, 435
(4th Cir. 2008) (providing standard). We therefore conclude
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that the challenges to counsel’s performance are not cognizable
on direct appeal, but rather, must be pursued, if at all, in a
proceeding for post-conviction relief. United States v.
Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Vargas-Torres, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Vargas-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 Vargas-Torres.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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