United States v. Maldonado-Bernave , 26 F. App'x 178 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4256
ARMANDO MALDONADO-BERNAVE,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-00-356)
Submitted: November 21, 2001
Decided: December 26, 2001
Before WILKINS, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Brian M. Aus, Durham, North Carolina, for Appellant. Benjamin H.
White, Jr., United States Attorney, Steven H. Levin, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. MALDONADO-BERNAVE
OPINION
PER CURIAM:
Armando Maldonado-Bernave pled guilty to conspiracy to distrib-
ute more than 500 kilograms of marijuana and possession with intent
to distribute marijuana. He was sentenced to thirty-five months
imprisonment. Maldonado-Bernave’s attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967). Counsel
states that there are no meritorious grounds for appeal, but raises
issues regarding the factual basis supporting the guilty plea and the
court’s failure to sentence Maldonado-Bernave to the minimum sen-
tence in the guideline range. Maldonado-Bernave was informed of his
right to file a supplemental brief, but he has not done so.
Federal Rule of Criminal Procedure 11(f) requires the district court
to ensure that there is a factual basis for a defendant’s guilty plea
prior to entering a judgment of conviction. We have previously stated
that this rule requires that the district court "be subjectively satisfied
that there is a sufficient factual basis for a conclusion that the defen-
dant committed all of the elements of the offense." United States v.
Mitchell, 104 F.3d 649, 652 (4th Cir. 1997). Although we generally
review the adequacy of a guilty plea de novo, Rule 11 violations are
reviewed for harmless error. United States v. Goins, 51 F.3d 400, 402
(4th Cir. 1995); see also Fed. R. Crim. P. 11(h). In determining
whether an error was harmless, we may consider not only the evi-
dence before the district court at the time the judgment of conviction
was entered, but also any evidence subsequently entered into the
record, for example, during sentencing. United States v. Adams, 961
F.2d 505, 512 (5th Cir. 1992).
In this case, the district court outlined the elements of both charges
and asked Maldonado-Bernave if he was guilty of these crimes. By
responding, "yes," Maldonado-Bernave acknowledged that he con-
spired to distribute marijuana and possessed marijuana with the intent
to distribute. Further, the prosecutor outlined the evidence in the case,
which showed that Maldonado-Bernave and his co-conspirators were
found at a business location at approximately six o’clock in the morn-
ing loading approximately 700 kilograms of marijuana into various
vehicles. Maldonado-Bernave agreed that the Government would be
UNITED STATES v. MALDONADO-BERNAVE 3
able to prove the facts as presented. Finally, at sentencing,
Maldonado-Bernave again admitted his participation in the conspir-
acy and requested forgiveness. In light of this evidence, we find that
the Government presented a sufficient factual basis and that, even if
there was an error in this regard, it was harmless.
Maldonado-Bernave’s sentencing guideline range was 30-37
months. The district court imposed a sentence of 35 months.
Maldonado-Bernave contends that he should have been sentenced to
30 months, the minimum under the applicable guideline range, but he
does not challenge the actual calculation of the range. The district
court’s discretionary decision to impose sentence at any point within
a correctly calculated guideline range is not reviewable. United States
v. Jones, 18 F.3d 1145, 1151 (4th Cir. 1994).
In accordance with the requirements of Anders, we have examined
the entire record in this case, and we find no meritorious issues for
appeal. Accordingly, we affirm Maldonado-Bernave’s 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 fur-
ther review. If the client 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. Coun-
sel’s motion must state that a copy thereof was served on the client.
We dispense with oral argument, because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED