United States v. Rony Garcia-Najera , 478 F. App'x 315 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0465n.06
No. 11-2432
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) May 01, 2012
)
LEONARD GREEN, Clerk
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
RONY ALBERTO GARCIA-NAJERA, ) THE WESTERN DISTRICT OF
) MICHIGAN
Defendant-Appellant. )
Before: MARTIN and CLAY, Circuit Judges; HOOD, District Judge.*
PER CURIAM. Rony Alberto Garcia-Najera, who is represented by counsel, appeals his
conviction for illegally reentering the United States subsequent to a felony conviction.
Garcia-Najera, a native and citizen of Guatemala, was removed from the United States in
October 2009 after being convicted of possessing cocaine, fleeing a police officer, and operating a
motor vehicle while intoxicated. In February 2011, Garcia-Najera was arrested for state traffic
violations, furnishing false information to a police officer, and resisting a police officer. Garcia-
Najera was subsequently arrested by federal authorities and charged with illegal reentry into the
United States subsequent to a felony conviction in violation of 8 U.S.C. § 1326(a) and (b)(1).
Garcia-Najera pled guilty to the charge without the benefit of a plea agreement. A
presentence report calculated Garcia-Najera’s total offense level at ten and his criminal history
category at IV, resulting in an advisory sentencing guideline’s range of fifteen to twenty-one months
*
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 11-2432
-2-
of imprisonment. The district court determined that the advisory sentencing guideline’s range was
properly calculated and imposed a sentence of twenty-one months of imprisonment with no term of
supervised release.
Garcia-Najera’s appellate counsel has filed a motion to withdraw, in which he states that his
careful review of the record has led him to the conclusion that there are no legally non-frivolous
issues present in the appeal. Counsel accompanies his motion with a brief prepared pursuant to
Anders v. California, 386 U.S. 738, 744 (1967), in which he identifies challenges to Garcia-Najera’s
guilty plea and his sentence. Counsel concludes, however, that Garcia-Najera’s plea was voluntary
and that the district court imposed a reasonable sentence. Garcia-Najera has not responded to
counsel’s motion to withdraw, despite being advised of his right to do so. After undertaking an
independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 82–83 (1988), we agree
with counsel and grant the motion to withdraw because there are no arguable grounds for appeal that
are apparent in the record.
Given that Garcia-Najera entered a guilty plea, he has waived his right to appeal any
constitutional violations occurring prior to his plea. He may only challenge whether his plea was
voluntarily and intelligently given. See Tollett v. Henderson, 411 U.S. 258, 267 (1973). A guilty
plea is valid if it is entered voluntarily and intelligently based on the totality of the circumstances.
Brady v. United States, 397 U.S. 742, 749 (1970).
At his plea hearing, the magistrate judge, through an interpreter, placed Garcia-Najera under
oath and advised him that if he made false statements, he could be subject to penalties for perjury.
The magistrate judge questioned Garcia-Najera about his age, his education, his ability to read and
write, and his physical and mental health in order to determine whether he was competent to
comprehend the proceedings. The magistrate judge read the charge that Garcia-Najera was facing,
No. 11-2432
-3-
explained the penalties associated with the charge, and how Garcia-Najera’s sentencing guidelines
range would be calculated. Garcia-Najera confirmed that he had discussed these issues with his
attorney and that he was satisfied with counsel’s representation.
The magistrate judge explained the rights associated with a jury trial that Garcia-Najera
would be waiving by entering a guilty plea. Garcia-Najera confirmed that he had no questions about
his rights, the charge, or the penalties it carried. He stated that he wished to plead guilty to the
charge. Garcia-Najera also confirmed that he was not pleading guilty as the result of threats, force,
or promises of leniency. The government stated the factual basis for the plea, and Garcia-Najera
agreed that the facts, as presented, were correct. Because the totality of the circumstances
demonstrates that there was a factual basis for Garcia-Najera’s plea and that the plea was voluntarily
and intelligently entered, no arguable issues may be raised on appeal in connection with the plea.
The record further demonstrates that Garcia-Najera’s sentence was reasonable. We review
a district court’s sentence for both procedural and substantive reasonableness. Gall v. United States,
552 U.S. 38, 51 (2007). A sentence within the advisory guideline’s range is accorded a rebuttable
presumption of reasonableness. See United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en
banc).
Garcia-Najera cannot, in good faith, argue that his sentence was procedurally unreasonable.
He did not file objections to the presentence report, he acknowledged at his sentencing hearing that
his advisory guideline’s range was correctly calculated, and he did not request a departure. Further,
the district court recognized the advisory nature of the guidelines, considered the applicable 18
U.S.C. § 3553(a) factors, and explained that a term of imprisonment at the high end of the
guideline’s range was necessary given Garcia-Najera’s history of violence.
No. 11-2432
-4-
With respect to the substantive reasonableness of the sentence, the district court listened to
the parties’ positions on sentencing, and Garcia-Najera made a statement to the court. The district
court considered the seriousness of the crime, Garcia-Najera’s characteristics, the need to provide
just punishment for the offense, the need to promote respect for the law, and the need for deterrence
and protection of the public. The district court concluded that a twenty-one month sentence was
sufficient, but not greater than necessary, to comply with the purposes of sentencing. Thus, Garcia-
Najera cannot raise an arguable issue that would demonstrate that his within-guidelines sentence was
unreasonable.
After examining the record and discovering no non-frivolous issues for appeal, we grant
counsel’s motion to withdraw and affirm the district court’s judgment.