United States v. Gama-Saldivar , 234 F. App'x 101 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5272
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE GAMA-SALDIVAR, a/k/a El Burro, a/k/a
Pascual Delgado-Saldivar,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00197-NCT)
Submitted: June 15, 2007 Decided: July 12, 2007
Before WILLIAMS, Chief Judge, and GREGORY and SHEDD, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen III, Federal Public Defender, Gregory Davis, Senior
Litigator, Winston-Salem, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Randall Stuart Galyon,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Gama-Saldivar appeals his conviction and 136-month
sentence following his guilty plea to conspiracy to distribute 500
grams or more of methamphetamine, in violation of 21 U.S.C. §§ 846
and 841(b)(1)(A). Gama-Saldivar’s attorney filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
certifying that there are no meritorious grounds for appeal, but
questioning whether the district court erred by imposing a sentence
within the guidelines. The Government did not file a reply brief,
and although advised of his right to do so, Gama-Saldivar did not
file a pro se supplemental brief. Finding no reversible error, we
affirm.
Counsel suggests that the district court erred by
imposing a sentence within the recommended guidelines range. 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. 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
conjunction with other relevant factors under the guidelines and
§ 3553(a). United States v. Moreland, 437 F.3d 424, 432 (4th
Cir.), cert. denied, 126 S. Ct. 2054 (2006). This court will
affirm a post-Booker sentence if it “is within the statutorily
prescribed range and is reasonable.” Id. at 433 (internal
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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). “The
district court need not discuss each factor set forth in § 3553(a)
‘in checklist fashion;’ ‘it is enough to calculate the range
accurately and explain why (if the sentence lies outside it) this
defendant deserves more or less.’” Moreland, 437 F.3d at 432
(quoting United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)).
Here, the district court sentenced Gama-Saldivar post-
Booker and appropriately treated the guidelines as advisory. The
court sentenced Gama-Saldivar after considering and examining the
sentencing guidelines and the § 3553(a) factors, as instructed by
Booker. Gama-Saldivar’s 136-month sentence is well within the
appropriate guidelines range and below the statutory maximum
sentence of life in prison. Gama-Saldivar asked for a sentence at
the bottom of the guidelines range because he would be deported;
the district court noted that it saw no reason to depart from the
guidelines.
Finally, neither Gama-Saldivar nor the record suggests
any information so compelling to rebut the presumption that a
sentence within the properly calculated guidelines range is
reasonable. Accordingly, we affirm.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
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therefore affirm Gama-Saldivar’s conviction and sentence. This
court requires that counsel inform Gama-Saldivar, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Gama-Saldivar 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 Gama-Saldivar.
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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