United States v. Vasquez , 261 F. App'x 573 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4057
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JORGE MAURICCIO VASQUEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:06-cr-00147)
Submitted: December 19, 2007 Decided: January 11, 2008
Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kimberly Y. Best, THE BEST LAW FIRM, PLLC, Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Adam Morris, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jorge Vasquez pled guilty without a plea agreement to
conspiracy to possess with intent to distribute and possession with
intent to distribute at least five kilograms of a mixture and
substance containing a detectable amount of cocaine, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846 (2000). The district
court sentenced Vasquez to concurrent terms of ten years’
imprisonment, which was the statutory mandatory minimum punishment.
See 21 U.S.C. § 841(b)(1) (2000). Vasquez timely appealed. We
affirm.
Vasquez initially contends his guilty plea was not
knowing and voluntary, because he claims he never agreed to the
Government’s factual basis demonstrating he possessed at least five
kilograms of a mixture and substance containing a detectable amount
of cocaine. Vasquez raised this contention at the sentencing
hearing; although Vasquez never formally moved to withdraw his
guilty plea, the district court stated it would deny such a motion
to the extent Vasquez sought this relief.
A defendant does not have an absolute right to withdraw
a guilty plea, United States v. Moore, 931 F.2d 245, 248 (4th Cir.
1991), and we find no abuse of discretion in the court’s Fed. R.
Crim. P. 11 and sentencing hearings. See United States v.
Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). Vasquez was advised
he faced a statutory mandatory minimum of ten years’ imprisonment
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on both counts, and Vasquez indicated he understood the district
court would impose a sentence within the statutory range of ten
years to life imprisonment. Thus, we conclude Vasquez knowingly
and voluntarily entered his guilty plea, with an understanding of
its consequences. See United States v. Wood, 378 F.3d 342, 349
(4th Cir. 2004).
Vasquez also contends the district court erred in
sentencing him to ten years’ imprisonment, notwithstanding the
statutory mandatory minimum of that length and the validity of his
guilty plea. After United States v. Booker, 543 U.S. 220 (2005),
we review a sentence for unreasonableness. United States v.
Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). A sentencing court
is no longer bound by the range prescribed by the advisory
sentencing guidelines. United States v. Green, 436 F.3d 449,
455-56 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006); Hughes,
401 F.3d at 546. In determining the sentence, however, courts are
still required to calculate and consider the guidelines range and
the factors set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2006). Green, 436 F.3d at 455-56. “[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, 127 S. Ct. 2456, 2462-69 (2007) (upholding
application of presumption of reasonableness to within-guidelines
sentence).
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The district court appropriately held Vasquez responsible
for at least five kilograms of cocaine. See Chapman v. United
States, 500 U.S. 453, 456 (1991) (holding weight of drug includes
net weight of drug plus any dilutant, cutting agent or carrier
medium). Furthermore, the district court correctly determined
Vasquez had more than one criminal history point, making him
ineligible for a reduction below the statutory mandatory minimum.
See U. S. Sentencing Guidelines Manual § 5C1.2(a)(1) (2006). The
court sentenced Vasquez within the properly calculated sentencing
guidelines range, and we therefore conclude the sentence was
reasonable.
Accordingly, we affirm Vasquez’s convictions and
sentence. 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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