United States v. Jose Pina

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4355
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE FRANCISCO JIMENEZ PINA, a/k/a Jose Jimenez Mancilla,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:12-cr-00049-RLV-DCK-2)
Submitted: March 11, 2015 Decided: March 26, 2015
Before SHEDD, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Samuel B. Winthrop, WINTHROP & WINTHROP, Statesville, North
Carolina, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Francisco Jimenez Pina pleaded guilty, pursuant to a
written plea agreement, to (i) conspiracy to distribute and
possess with intent to distribute at least 500 grams of a
mixture and substance containing a detectable amount of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), 846, and (ii) possession of a firearm in furtherance
of a drug trafficking crime, in violation of 18 U.S.C. § 924(c).
The district court sentenced Pina to the mandatory-minimum 120
months’ imprisonment for the conspiracy, followed by a
consecutive 60 months for the firearm conviction, for a total
sentence of 180 months’ imprisonment. On appeal, Pina’s counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that there are no meritorious issues for appeal,
but questioning whether (1) the district court properly applied
a two-level enhancement for maintaining a premises for the
purpose of manufacturing or distributing methamphetamine and (2)
Pina’s sentence should be remanded to the district court for
application of Amendment 782 to the Sentencing Guidelines. Pina
has filed a pro se supplemental brief, arguing that he was
coerced into pleading guilty and that his sentence is
substantively unreasonable. We affirm.
In accordance with Anders, we have reviewed the record in
this case, and have found no meritorious issues. Before
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accepting Pina’s guilty pleas, the magistrate judge conducted a
thorough plea colloquy, substantially satisfying the
requirements of Rule 11 of the Federal Rules of Criminal
Procedure and ensuring that Pina’s plea was knowing, voluntary,
and supported by an independent factual basis.
Counsel questions whether the district court properly
applied a two-level enhancement for maintaining a premises for
the purpose of manufacturing or distributing methamphetamine.
We review sentences for reasonableness “under a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 41 (2007). We first ensure that the district court
committed no “significant procedural error,” including improper
calculation of the Guidelines range, insufficient consideration
of the 18 U.S.C. § 3553(a) factors, and inadequate explanation
of the sentence imposed. Id. at 51. Because Pina failed to
raise this issue below, we review for plain error only. United
States v. Slade, 631 F.3d 185, 189-90 (4th Cir. 2011).
“If the defendant maintained a premises for the purpose of
manufacturing or distributing a controlled substance, increase
[the offense level] by 2 levels.” U.S.S.G. § 2D1.1(b)(12)
(2012). “Manufacturing or distributing a controlled substance
need not be the sole purpose for which the premises was
maintained, but must be one of the defendant’s primary or
principal uses for the premises.” Id. § 2D1.1 cmt. n.17.
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We conclude that Pina has not demonstrated any error
affecting his substantial rights. “To satisfy this requirement
in the sentencing context, the defendant must show that he would
have received a lower sentence had the error not occurred.”
United States v. Knight, 606 F.3d 171, 178 (4th Cir. 2010). The
district court here departed below the Guidelines to the
statutory mandatory minimum sentence, the lowest sentence it
could impose. Thus, we ascertain no plain error in the district
court’s calculation of the Guidelines range that affected Pina’s
substantial rights.
If a sentence is procedurally reasonable, we then consider
whether it is substantively reasonable, “tak[ing] into account
the totality of the circumstances.” Gall, 552 U.S. at 51. “Any
sentence that is within or below a properly calculated
Guidelines range is presumptively [substantively] reasonable.
Such a presumption can only be rebutted by showing that the
sentence is unreasonable when measured against the 18 U.S.C.
§ 3553(a) factors.” United States v. Louthian, 756 F.3d 295,
306 (4th Cir. 2014) (citation omitted). After careful review of
the record, we conclude that Pina has failed to rebut the
presumed reasonableness of his below-Guidelines sentence.
Finally, counsel questions whether Pina’s sentence should
be remanded to the district court to allow the court to apply
Amendment 782 to the Guidelines. There is no authority for
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counsel’s suggestion, and we decline to vacate Pina’s sentence
on this basis.
Accordingly, we affirm the district court’s judgment. This
court requires that counsel inform Pina, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Pina 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 Pina.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the material before this
court and argument will not aid the decisional process.
AFFIRMED
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