United States v. Miranda , 381 F. App'x 258 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4250
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MULLER MIRANDA, a/k/a Eckiver Cortez, a/k/a Miuler Miranda,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L.
Osteen, Jr., District Judge. (1:08-cr-00251-WO-1)
Submitted: May 6, 2010 Decided: June 3, 2010
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Angela Hewlett Miller, Assistant United States
Attorney, Randall Stuart Galyon, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Muller Miranda pled guilty pursuant to a plea
agreement to one count of willfully distributing 265.2 grams of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B) (2006). He was sentenced to eighty-seven months’
imprisonment, at the low end of the properly calculated
Sentencing Guidelines. Miranda’s counsel filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), certifying there
were no meritorious issues for appeal but requesting the court
review the issue of whether the sentence was unreasonably high
in light of 18 U.S.C. § 3553(a) (2006). Miranda filed a pro se
supplemental brief raising several issues. The Government
declined to file a brief.
We have reviewed Miranda’s plea colloquy under Rule 11
of the Federal Rules of Criminal Procedure and find no error.
We affirm his conviction.
With respect to the sentence, after United States v.
Booker, 543 U.S. 220 (2005), we review a sentence for
reasonableness, using an abuse of discretion standard of review.
Gall v. United States, 552 U.S. 38, 51 (2007). The first step
in this review requires the court to ensure the district court
committed no significant procedural error. United States v.
Evans, 526 F.3d 155, 161 (4th Cir.), cert. denied, 129 S. Ct.
476 (2008). Procedural errors include “failing to calculate (or
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improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence--including
an explanation for any deviation from the Guidelines range.”
Gall, 552 U.S. at 51.
If we find the sentence to be procedurally reasonable,
we will consider the substantive reasonableness of the sentence.
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). The
court presumes a sentence within the Guidelines range is
reasonable. See United States v. Allen, 491 F.3d 178, 193 (4th
Cir. 2007). We find no error in the district court’s decision
to affirmatively adopt defense counsel’s recommendation and
impose a sentence at the low end of the Sentencing Guidelines.
We find the sentence reasonable.
Miranda raises several arguments, including
ineffective assistance of counsel. This claim, raised in
conjunction with his other issues, is more appropriately raised
in a motion filed pursuant to 28 U.S.C.A. § 2255 (West Supp.
2009), unless counsel’s alleged ineffectiveness conclusively
appears on the record. See United States v. Richardson, 195
F.3d 192, 198 (4th Cir. 1999). After reviewing the record, we
find there is no conclusive evidence counsel rendered
ineffective assistance. We have reviewed Miranda’s other
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arguments, including his claims that his Guidelines range of
imprisonment was improperly calculated and that he was eligible
for the Safety Valve provision under U.S. Sentencing Guidelines
Manual § 5C1.2 (2008) and 18 U.S.C. § 3553(f) (2006) and find
those claims without merit. The district court did not err by
including as relevant conduct the drug quantities included in
the dismissed charges. See United States v. Jones, 31 F.3d
1304, 1316 (4th Cir. 1994); see also USSG § 1B1.3. Furthermore,
there is no evidence Miranda fulfilled all the requirements in
order to be considered for the Safety Valve provision.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm the judgment of the district
court. This court requires 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 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
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