United States v. Garcia , 240 F. App'x 584 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5013
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VICTOR MANUAL GARCIA,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:06-cr-00068-JAB)
Submitted: May 4, 2007 Decided: July 10, 2007
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William C.
Ingram, Jr., First Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Kearns Davis, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Victor Manual Garcia appeals his sentence of 168 months
in prison and five years of supervised release after pleading
guilty to distributing 58.3 grams of a mixture and substance
containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B) (2000), and possession of a firearm by an illegal alien,
in violation of 18 U.S.C. §§ 922(g)(5), 924(a)(2) (2000). Garcia’s
attorney has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), asserting, in his opinion, there are no
meritorious grounds for appeal but raising the issue of whether
Garcia’s sentence is reasonable. The Government has not filed an
answering brief. Garcia was advised of his right to file a pro se
supplemental brief but has not done so. We affirm.
We will affirm a sentence imposed by the district court
as long as it is within the statutorily prescribed range and is
reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).
A sentence may be unreasonable for both substantive and procedural
reasons. United States v. Moreland, 437 F.3d 424, 434 (4th Cir.),
cert. denied, 126 S. Ct. 2054 (2006). An error of law or fact can
render a sentence unreasonable. United States v. Green, 436 F.3d
449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). In
sentencing a defendant, the district court must: (1) properly
calculate the guideline range; (2) determine whether a sentence
within that range serves the factors under 18 U.S.C. § 3553(a)
- 2 -
(2000); (3) implement mandatory statutory limitations; and
(4) explain its reasons for selecting a sentence, especially a
sentence outside the range. Id. at 455-56. A sentence within a
properly calculated range is presumptively reasonable. Id. at 457.
We have reviewed the record and conclude that Garcia’s
sentence is reasonable. The district court sentenced Garcia to the
low end of a properly calculated advisory guideline range. In
calculating the range, Garcia received a three-level reduction in
offense level based on his acceptance of responsibility. He did
not object to the presentence report or guideline calculations but
urged the court to sentence him at the low end or below the
advisory guideline range. He contended his early cooperation and
admissions regarding drug quantities were used against him to
determine his base offense level and thus enhance his sentence.
Further, while conceding his criminal history was properly scored,
Garcia asserted he did not know he was on probation when committing
the instant offense because he received a suspended state sentence.
In sentencing him to the low end of his advisory
guideline range, the district court noted it took into account
Garcia’s arguments regarding the nature of the offense and his
history and characteristics. The court considered Garcia’s early
admission of guilt but found it did not provide an appropriate
basis for a variance sentence in this case. The court noted a
sentence within the advisory guideline range met the objectives of
- 3 -
deterrence and punishment, and the court reasonably concluded a
sentence at the low end of the range was sufficient to meet the
sentencing objectives under 18 U.S.C. § 3553(a) but not greater
than necessary to do so.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment. This
court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for
further 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. Counsel’s motion must state that a copy thereof
was served on the client.
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
- 4 -