United States v. Leon-Ramirez ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4676
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SERGIO LEON-RAMIREZ, a/k/a Humberto Marin-
Cruz,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:05-cr-00183-JAB-3)
Submitted: August 22, 2007 Decided: September 5, 2007
Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian M. Aus, Durham, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Greensboro, North Carolina; Robert
Albert Jamison Lang, OFFICE OF THE UNITED STATES ATTORNEY, Winston-
Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sergio Leon-Ramirez pled guilty pursuant to a written
plea agreement to obstruction of commerce by robbery, in violation
of 18 U.S.C. §§ 2, 1951 (2000) (“Count One”); brandishing a firearm
during and in relation to a crime of violence, in violation of 18
U.S.C. §§ 2, 924(c)(1)(A)(ii) (2000) (“Count Two”); and illegal
reentry by an aggravated felon after removal, in violation of 8
U.S.C. § 1326(a), (b)(2) (2000) (“Count Six”). The district court
sentenced Leon-Ramirez to concurrent eighty-month sentences for
Counts One and Six and a consecutive term of eighty-four months’
imprisonment on Count Two. Leon-Ramirez appealed, and his counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), contending there are no meritorious issues for appeal but
asserting the sentence was unreasonable. Leon-Ramirez filed a pro
se supplemental brief contending his guilty plea was unknowing
because the district court did not recite the elements of his
offenses. The Government declined to file a responding brief.
Finding no error, we affirm.
After United States v. Booker, 543 U.S. 220 (2005), a
district court is no longer bound by the range prescribed by the
sentencing guidelines. United States v. Hughes, 401 F.3d 540, 546
(4th Cir. 2005). However, in imposing a sentence post-Booker,
courts still must calculate the applicable guidelines range after
making the appropriate findings of fact and consider the range in
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conjunction with other relevant factors under the guidelines and 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2007). United States v.
Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct.
2054 (2006). We will affirm a post-Booker sentence if it “is
within the statutorily prescribed range and is reasonable.” Id. at
433 (internal quotation marks and citation omitted). “[A] sentence
within the proper advisory Guidelines range is presumptively
reasonable.” United States v. Johnson, 445 F.3d 339, 341 (4th Cir.
2006); see Rita v. United States, ___ U.S. ___, 127 S. Ct. 2456(2007) (upholding presumption).
The concurrent sentences for Counts One and Six were well
within the statutory maximum of twenty years’ imprisonment and were
also within the properly calculated sentencing guidelines range of
seventy to eighty-seven months’ imprisonment. We conclude the
district court’s imposition of sentence on these counts was
reasonable. With respect to Count Two, the district court
sentenced Leon-Ramirez to the statutory mandatory minimum. See 18
U.S.C. § 924(c)(1)(A)(ii) (2000) (providing consecutive term of not
less than seven years’ imprisonment). Booker “did nothing to alter
the rule that judges cannot depart below a statutorily provided
minimum sentence” except upon the Government’s motion on the basis
of substantial assistance. United States v. Robinson, 404 F.3d
850, 862 (4th Cir. 2005), cert. denied, 126 S. Ct. 288 (2005). We
likewise conclude the sentence for this count was proper.
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In his pro se supplemental brief, Leon-Ramirez contends
the district court erroneously failed to recite the elements of the
charged offenses during the Fed. R. Crim. P. 11 hearing. Because
Leon-Ramirez did not move in the district court to withdraw his
guilty plea, we review for plain error. United States v. Martinez,
277 F.3d 517, 525 (4th Cir. 2002). To establish plain error, Leon-
Ramirez must show that an error occurred, that the error was plain,
and that the error affected his substantial rights. See United
States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). Even if
Leon-Ramirez satisfies these requirements, correction of the error
remains within the court’s discretion, which we will not exercise
unless the error seriously affects the fairness, integrity or
public reputation of judicial proceedings. Id.Prior to accepting Leon-Ramirez’s guilty plea, the
district court was required to determine Leon-Ramirez understood
the nature of each charge to which Leon-Ramirez was pleading. See
Fed. R. Crim. P. 11(b)(1)(G). However, Leon-Ramirez need not
receive this information at the plea hearing itself. See United
States v. DeFusco, 949 F.2d 114, 117 (4th Cir. 1991). The district
court was entitled to consider whether a written plea agreement
existed and to determine the plea was knowing and intelligent based
on information Leon-Ramirez received prior to the plea hearing.
Id. Leon-Ramirez’s signed plea agreement indicated he was informed
of the elements of each offense by his trial counsel prior to
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accepting the plea agreement. At the Rule 11 hearing, Leon-Ramirez
confirmed this was the case and indicated he understood the
elements based on the explanation provided by counsel.
Accordingly, we conclude Leon-Ramirez fails to establish plain
error.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Leon-Ramirez’s convictions and sentence. This
court requires that counsel inform Leon-Ramirez, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Leon-Ramirez 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 Leon-Ramirez.
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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