United States v. Abner Martinez , 521 F. App'x 195 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4789
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ABNER MARTINEZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:11-cr-02135-JFA-1)
Submitted: May 23, 2013 Decided: May 28, 2013
Before MOTZ and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Leslie T. Sarji, SARJI LAW FIRM, LLC, Charleston, South
Carolina, for Appellant. John David Rowell, Assistant United
States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Abner Martinez appeals the district court’s judgment
imposing a 168-month sentence following his guilty plea to
conspiracy to possess with intent to distribute and to
distribute five kilograms or more of cocaine base, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846 (2006). On appeal,
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), certifying that there are no meritorious issues
for appeal but questioning the reasonableness of Martinez’s
sentence. We affirm.
We review a sentence for reasonableness, applying a
deferential abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). We must first ensure that the
district court committed no significant procedural error, such
as improper calculation of the Sentencing Guidelines range,
insufficient consideration of the 18 U.S.C. § 3553(a) (2006)
factors and the parties’ sentencing arguments, and inadequate
explanation of the sentence imposed. United States v. Lynn, 592
F.3d 572, 575 (4th Cir. 2010). If the sentence is free from
significant procedural error, we also review the substantive
reasonableness of the sentence. Id. The sentence imposed must
be “sufficient, but not greater than necessary, to comply with
the purposes” of sentencing. 18 U.S.C. § 3553(a). A within-
Guidelines sentence is presumed reasonable on appeal, and the
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defendant bears the burden to “rebut the presumption by
demonstrating that the sentence is unreasonable when measured
against the § 3553(a) factors.” See United States v. Montes-
Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation
marks omitted).
We conclude that the district court imposed a
procedurally and substantively reasonable sentence. The court
properly calculated Martinez’s applicable Guidelines range. The
court addressed the parties’ arguments, made detailed findings
on the record, and articulated the basis for the sentence it
imposed, grounded in the § 3553(a) factors. Finally, we
conclude that neither Martinez nor the available record rebuts
the presumption of reasonableness accorded his within-Guidelines
sentence. See Montes-Pineda, 445 F.3d at 379.
Martinez filed a pro se supplemental brief raising
ineffective assistance of counsel in plea bargaining because
Martinez did not realize that the Guidelines enhancements could
increase his sentence. Because the record does not conclusively
establish that trial counsel rendered ineffective assistance, we
decline to address this claim on direct appeal. See United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997) (conclusive
evidence of ineffective assistance must appear on the record).
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 the district court’s judgment. This court
requires that counsel inform Martinez, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Martinez 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 Martinez. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
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