United States v. Banos

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4625
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BERNABE MARCELLO BANOS, a/k/a Guillermo
Alberto Hernandez,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:05-cr-00374-JAB)
Submitted: June 15, 2007 Decided: June 19, 2007
Before WIDENER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ames C. Chamberlin, LAW OFFICES OF AMES C. CHAMBERLIN, Greensboro,
North Carolina, for Appellant. Michael Francis Joseph, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bernabe Marcello Banos pled guilty to conspiracy to
possess with intent to distribute methamphetamine, possession with
intent to distribute methamphetamine, and reentry of a deported
felon. The district court sentenced him to concurrent terms of 120
months’ imprisonment, the statutory mandatory minimum for the drug
offenses. See 21 U.S.C. § 841(b)(1)(B) (2000). On appeal, counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), contending that no meritorious issues exist for appeal but
suggesting that the district court imposed an unreasonable sentence
under United States v. Booker, 543 U.S. 220 (2005). Although
informed of his right to file a pro se supplemental brief, Banos
has not done so.
Banos was sentenced at the bottom of his advisory
guideline range and at the statutory mandatory minimum sentence of
ten years on the drug charges. Banos made no showing either at
sentencing or on appeal to overcome the presumption that a sentence
within the guideline range was reasonable for his reentry
conviction. See United States v. Green, 436 F.3d 449, 456-57 (4th
Cir.), cert. denied, 126 S. Ct. 2309 (2006). As for the
methamphetamine convictions, the district court possessed no
discretion to sentence below the statutory mandatory minimum
sentence, because “Booker did nothing to alter the rule that judges
cannot depart below a statutorily provided minimum sentence.”
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United States v. Robinson, 404 F.3d 850, 862 (4th Cir.), cert.
denied, 126 S. Ct. 288 (2005).
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Banos’ convictions and sentence. This court
requires that counsel inform Banos, in writing, of the right to
petition the Supreme Court of the United States for further review.
If Banos 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 Banos.
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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