United States v. Ortega-Montoya

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4663
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAVIER ORTEGA-MONTOYA, a/k/a Fernando Mercado
Gutierrez,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:05-cr-01277-HFF)
Submitted: December 14, 2006 Decided: December 19, 2006
Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Hervery B.O. Young, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Isaac Louis Johnson, Jr., OFFICE OF
THE UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Javier Ortega-Montoya pled guilty to conspiracy to
possess with intent to distribute more that fifty grams of
methamphetamine and more than 500 grams of a substance containing
methamphetamine, in violation of 21 U.S.C. § 846 (2000). The
district court sentenced Ortega-Montoya as a career offender to 262
months of imprisonment, the bottom of the properly calculated
advisory sentencing guidelines range, after considering that range
and the other factors in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2006). Ortega-Montoya’s counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that, in his
view, there are no meritorious issues for appeal but challenging
the adequacy of the plea colloquy. Ortega-Montoya was informed of
his right to file a pro se supplemental brief but has not done so.
We affirm.
Counsel questions whether the district court complied
with Fed. R. Crim. P. 11 in accepting Ortega-Montoya’s guilty plea.
Because Ortega-Montoya did not move to withdraw his guilty plea, we
review his challenge to the adequacy of the Rule 11 hearing for
plain error. United States v. Martinez, 277 F.3d 517, 525 (4th
Cir. 2002). We have carefully reviewed the transcript of the Rule
11 hearing and find no error in the district court’s acceptance of
Ortega-Montoya’s guilty plea. See United States v. DeFusco, 949
F.2d 114, 119-20 (4th Cir. 1991).
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In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
Accordingly, we affirm Ortega-Montoya’s conviction and sentence.
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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