United States v. Cardenas-Rosas , 209 F. App'x 342 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5161
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FERNANDO CARDENAS-ROSAS, a/k/a Luis Rodriguez-
Fernandez,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-05-183)
Submitted: October 27, 2006 Decided: December 15, 2006
Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Robert Albert Jamison Lang, OFFICE
OF THE UNITED STATES ATTORNEY, Winston-Salem, North Carolina, Anna
Mills Wagoner, United States Attorney, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Fernando Cardenas-Rosas1 pled guilty to charges of
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.
§ 924(c)(1)(A)(ii) (2000) (“Count Two”); and theft of firearms, in
violation of 18 U.S.C. § 922(u) (2000) (“Count Three”). The
district court sentenced Cardenas-Rosas to concurrent terms of 84
months’ imprisonment on Counts One and Three and a consecutive term
of 84 months’ imprisonment on Count Two, the statutory mandatory
minimum for that offense. See 18 U.S.C. § 924(c)(1) (2000).
Cardenas-Rosas appealed. We affirm.
Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), contending there exist no
meritorious issues for appeal but suggesting the district court
imposed an unreasonable sentence. Cardenas-Rosas filed a pro se
supplemental brief. The Government elected not to file a
responsive brief.
After United States v. Booker, 543 U.S. 220 (2005), a
sentencing court is no longer bound by the range prescribed by the
sentencing guidelines. See United States v. Hughes, 401 F.3d 540,
1
The indictment returned by the grand jury listed the name
“Luis Rodriguez-Fernandez.” This name is an alias used by
Cardenas-Rosas. Upon the Government’s motion, and with the consent
of the Appellant, the district court ordered the indictment amended
to reflect Appellant’s true name, Fernando Cardenas-Rosas.
- 2 -
546 (4th Cir. 2005). In a post-Booker sentencing, district courts
must calculate the appropriate guideline range, consider the range
in conjunction with other relevant factors under the guidelines and
18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and impose a
sentence. United States v. Green, 436 F.3d 449, 455-56 (4th Cir.),
cert. denied, 126 S. Ct. 2309 (2006). However, “a district court
need not explicitly discuss every § 3553(a) factor on the record.”
United States v. Eura, 440 F.3d 625, 632 (4th Cir. 2006), petition
for cert. filed, ___ U.S.L.W. ___ (U.S. June 20, 2006) (No. 05-
11659). A sentence imposed within the properly calculated
guidelines range is presumptively reasonable. Green, 436 F.3d at
457; see United States v. Johnson, 445 F.3d 339, 341-42 (4th Cir.
2006) (discussing justifications for finding sentence within
properly calculated advisory guidelines range presumptively
reasonable).
On Counts One and Three, the district court sentenced
Cardenas-Rosas toward the middle of the range of 77 to 96 months’
imprisonment under the advisory sentencing guidelines.2 The court
noted it was inclined to impose a sentence at the top of the range,
given Cardenas-Rosas’ substantial prior criminal record, the nature
of the offense, and the need for adequate deterrence. Awarding
Cardenas-Rosas credit for some assistance to the Government in the
2
Counts One and Three carried statutory maximum terms of
twenty and ten years’ imprisonment, respectively. See 18 U.S.C.
§§ 1951, 924(i)(1) (2000).
- 3 -
capture of a co-defendant, however, the district court imposed
concurrent 84-month sentences. Cardenas-Rosas fails to rebut the
presumption that these sentences were reasonable. On Count Two,
the district court possessed no discretion to sentence below the
statutory mandatory minimum of seven years’ imprisonment, because
“Booker did nothing to alter the rule that judges cannot depart
below a statutorily provided minimum sentence.” United States v.
Robinson, 404 F.3d 850, 862 (4th Cir.), cert. denied, 126 S. Ct.
288 (2005).
In his pro se supplemental brief, Cardenas-Rosas mainly
challenges the specific offense characteristic enhancements used to
increase his sentence on Counts One and Three.3 Because Cardenas-
Rosas did not object to these enhancements in the district court,
this court reviews for plain error. See Fed. R. Crim. P. 52(b).
Four conditions must be met before we will notice plain error:
(1) there was error; (2) the error was plain under current law;
(3) the error must affect substantial rights, typically meaning the
defendant is prejudiced by the error in that it affected the
3
Cardenas-Rosas also contends his sentence was enhanced for
facilitating the escape of a co-defendant and his sentence was
excessive compared to those of his co-defendants. In fact, the
district court noted Cardenas-Rosas assisted to some degree in the
individual’s capture and cited this assistance when sentencing
Cardenas-Rosas to the middle of the guidelines range for the first
and third counts. Otherwise, the district court would have
sentenced Cardenas-Rosas at the top of the range, in light of his
prior record, the nature of the offense, and the need for
deterrence.
- 4 -
outcome of the proceedings; and (4) the error must seriously affect
the fairness, integrity, or public reputation of judicial
proceedings. United States v. Olano, 507 U.S. 725, 733-37 (1993).
Cardenas-Rosas received a two-point enhancement pursuant
to U.S. Sentencing Guidelines Manual (“USSG”) § 2B3.1(b)(3)(A)
(2004) because the victim sustained bodily injury and a separate
two-point offense level enhancement pursuant to USSG
§ 2B3.1(b)(4)(B) because the victim was physically restrained to
facilitate commission of the offense or to facilitate escape.
Cardenas-Rosas claims he never touched the victim, a pawn shop
teller who was forced into a back room at gun point, pushed to the
floor, and had a towel placed in her mouth and her hands, feet, and
mouth taped with duct tape. The record indicates Cardenas-Rosas at
least aided and abetted this activity; consequently, he “is
punishable as a principal.” 18 U.S.C. § 2 (2000).
Cardenas-Rosas also received a one-point enhancement
pursuant to USSG § 2B3.1(b)(6) because a firearm was taken and a
two-point enhancement pursuant to USSG § 2B3.1(b)(7)(C) because the
amount of loss exceeded $50,000. He claims he should not have
received these enhancements because the items were recovered.
“‘Loss’ means the value of the property taken, damaged, or
destroyed.” USSG § 2B3.1 comment. (n.3). The record indicates
over $50,000 worth of property was taken; similarly, the firearm
was taken. Therefore, these enhancements were also proper.
- 5 -
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Cardenas-Rosas’ convictions and
sentence. We deny Appellant’s motion to substitute attorney and
counsel’s motion to withdraw. This court requires that counsel
inform Cardenas-Rosas, in writing, of the right to petition the
Supreme Court of the United States for further review. If
Cardenas-Rosas requests that a petition be filed, but counsel
believes that such a petition would be frivolous, counsel may move
in this court for leave to withdraw from further representation.
Any such motion filed by counsel must state that a copy thereof was
served on Cardenas-Rosas. 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
- 6 -