United States v. Viruel , 403 F. App'x 860 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4399
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GIOVANNI VIRUEL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:08-cr-00590-CMC-10)
Submitted: October 14, 2010 Decided: December 2, 2010
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jonathan Harvey, Columbia, South Carolina, for Appellant. James
Chris Leventis, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Mark
C. Moore, Stanley Duane Ragsdale, Assistant United States
Attorneys, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Giovanni Viruel appeals the forty-eight month sentence
imposed following his conviction for use of a telecommunication
facility in a drug trafficking crime, in violation of 21 U.S.C.
§ 843(b) (2006), and illegal reentry, in violation of 8 U.S.C.
§ 1326(a) (2006). Viruel’s attorney has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), contending there
are no meritorious issues on appeal, but questioning whether the
district court erred in failing to apply a two-level reduction
pursuant to U.S. Sentencing Guidelines Manual (USSG)
§ 2D1.1(b)(11) (2008). * Though informed of his right to file a
pro se supplemental brief, Viruel has not done so, and the
Government has elected not to file a brief. We affirm.
“Regardless of whether the sentence imposed is inside
or outside the [g]uidelines range, the appellate court must
review the sentence under an abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 51 (2007). Appellate courts
are charged with reviewing sentences for both procedural and
substantive reasonableness. Id.*
Though counsel cites USSG § 2D1.1(b)(7) in his brief, that
section involves the application of a two-level enhancement for
distribution of an anabolic steroid and masking agent, not at
issue in this case. The remainder of counsel’s brief makes it
clear that counsel intended to cite to USSG § 2D1.1(b)(11).
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In determining procedural reasonableness, we first
assess whether the district court properly calculated the
defendant’s advisory guidelines range. Id. at 49-50. We then
determine whether the district court failed to consider the 18
U.S.C. § 3553(a) (2006) factors and any arguments presented by
the parties, treated the guidelines as mandatory, selected a
sentence based on “clearly erroneous facts,” or failed to
sufficiently explain the selected sentence. Id. at 51; United
States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). Finally,
we review the substantive reasonableness of the sentence,
“taking into account the ‘totality of the circumstances,
including the extent of any variance from the [g]uidelines
range.’” Pauley, 511 F.3d at 473 (quoting Gall, 552 U.S. at
51).
A district court’s factual findings, including those
that serve as a basis for a sentencing enhancement, are reviewed
for clear error, see United States v. Kiulin, 360 F.3d 456, 460
(4th Cir. 2004); a district court’s legal conclusions regarding
whether to apply an enhancement are reviewed de novo, see United
States v. Layton, 564 F.3d 330, 334 (4th Cir.), cert. denied,
130 S. Ct. 290 (2009). Under USSG § 2D1.1(b)(11), if a
“defendant meets the criteria set forth in subdivisions (1)-(5)
of subsection (a) of § 5C1.2 (Limitation on Applicability of
Statutory Minimum Sentences in Certain Cases),” his offense
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level should be decreased by two levels. Viruel bears the
burden of establishing he satisfies the § 5C1.2 criteria.
United States v. Thompson, 554 F.3d 450, 455 (4th Cir.), cert
denied, 130 S. Ct. 191 (2009). Because Viruel fails to make
such a showing, we conclude that the district court correctly
declined to apply a two-level reduction pursuant to USSG
§ 2D1.1(b)(11).
In accordance with Anders, we have reviewed the
remainder of the record and find no meritorious issues for
appeal. Therefore, we affirm the judgment of the district
court. 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
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