United States v. Henriquez , 240 F. App'x 557 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5175
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE GERMAN HENRIQUEZ,
Defendant - Appellant.
No. 06-5276
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE LUIS TORRES,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:06-cr-00151)
Submitted: June 4, 2007 Decided: July 9, 2007
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Falkner Wilkes, CRAVEN & WILKES, Greenville, South Carolina;
Richard H. Warder, Greenville, South Carolina; Benjamin T. Stepp,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenville, South Carolina;
for Appellants. Reginald I. Lloyd, United States Attorney,
Columbia, South Carolina; Isaac Louis Johnson, Jr., OFFICE OF THE
UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Jose German Henriquez and Jose Luis Torres pled guilty to
conspiracy to possess with intent to distribute methamphetamine, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) (2000). Henriquez
was sentenced to 151 months’ imprisonment, at the bottom of his
sentencing guidelines range. The district court found Torres
qualified for a “safety valve” sentencing reduction, see 18
U.S.C.A. § 3553(f) (West 2000 & Supp. 2006), and sentenced Torres
to eighty-seven months’ imprisonment, below the statutory minimum
of ten years’ imprisonment. See 21 U.S.C. § 841(b)(1)(A) (2000).
On appeal, counsel for Henriquez and Torres have filed a
consolidated brief pursuant to Anders v. California, 386 U.S. 738(1967), asserting there are no meritorious issues for appeal but
stating their clients challenge the propriety of their guilty pleas
and sentences. Neither Henriquez nor Torres filed pro se
supplemental briefs, despite being notified of their right to do
so. The Government declined to file a responding brief. Finding
no error, we affirm.
Counsel raised as a potential issue the adequacy of the
plea colloquy conducted pursuant to Fed. R. Crim. P. 11, but they
do not specify any deficiencies in the district court’s Rule 11
inquiries. Because neither Henriquez nor Torres moved in the
district court to withdraw his guilty plea, any error in the Rule
11 hearing is reviewed for plain error. See United States v.
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Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (discussing standard of
review). Our careful review of the record convinces us that the
district court fully complied with the mandates of Rule 11 in
accepting the guilty pleas. The court ensured Henriquez and Torres
entered their pleas knowingly and voluntarily and that their pleas
were supported by an independent factual basis. See United
States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). We
therefore conclude this claim fails.
Counsel also raised as a potential issue whether the
district court erred in adopting the presentence report (“PSR”) and
its calculations. As they raise this issue for the first time on
appeal, review is for plain error. See United States v. Evans, 416
F.3d 298, 300 (4th Cir. 2005). We find no such error in the
district court’s adoption of the PSR or its calculations.
Accordingly, this claim fails.
Finally, the Anders brief seeks review of whether the
district court improperly found Henriquez qualified for a criminal
history category of II based on prior state misdemeanor convictions
in which Henriquez was not represented by counsel. Henriquez bears
the burden of showing the prior conviction is invalid, United
States v. Jones, 977 F.2d 105, 110 (4th Cir. 1992), and because
Henriquez did not object to the use of these misdemeanor
convictions in the PSR’s calculations, we review for plain error.
A prior uncounseled misdemeanor conviction may be used to enhance
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the sentence for a subsequent offense only if no prison term was
imposed. See Nichols v. United States, 511 U.S. 738, 748-49
(1994). Henriquez does not dispute he was sentenced to probation
on both state offenses. Furthermore, Henriquez’s conclusory and
unsupported allegation fails to overcome the presumption that the
state court informed him of his right to counsel as it was required
to do. Parke v. Raley, 506 U.S. 20, 28-34 (1992).
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Henriquez’s and Torres’s convictions and
sentences. We deny counsels’ motion to withdraw from
representation. This court requires that counsel inform Henriquez
and Torres, in writing, of the right to petition the Supreme Court
of the United States for further review. If Henriquez or Torres
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. Any such motion to
withdraw must state that a copy thereof was served on the moving
attorney’s client.
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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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