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United States v. Borja, 07-4185 (2008)

Court: Court of Appeals for the Fourth Circuit Number: 07-4185 Visitors: 28
Filed: Jul. 21, 2008
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4185 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ELIASAR BORJA, Defendant - Appellant. No. 07-4342 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSE SAUL MONDRAGON, a/k/a Gordo, Defendant - Appellant. Appeals from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (7:05-cr-00097-FL) Submitted: June 30, 2008 Decided: July 21, 2008 B
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                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 07-4185



UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.


ELIASAR BORJA,

                 Defendant - Appellant.



                             No. 07-4342



UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.


JOSE SAUL MONDRAGON, a/k/a Gordo,

                 Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan, Chief
District Judge. (7:05-cr-00097-FL)


Submitted:   June 30, 2008                 Decided:   July 21, 2008


Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Sue Genrich Berry, BOWEN & BERRY, PLLC, Wilmington, North Carolina;
Lisa S. Costner, LISA S. COSTNER, PA, Winston-Salem, North
Carolina, for Appellants. Anne Margaret Hayes, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                              - 2 -
PER CURIAM:

           Eliasar Borja and Jose Saul Mondragon, along with several

co-conspirators, were charged with various offenses in a multi-

count indictment.     Borja entered a straight-up guilty plea to

conspiracy to distribute and possess with intent to distribute more

than five kilograms of cocaine, in violation of 21 U.S.C. § 846

(2000) (Count One), distribution of cocaine, in violation of 21

U.S.C. § 841(a)(1) (2000) (Counts Three, Four, Five, and Six),

distribution of a mixture and substance containing a detectable

amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1)

(Count Seven), and distribution of cocaine and aiding and abetting

the same, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2

(2000)   (Count   Eight).   The   district    court   sentenced   him   to

concurrent 135-month prison terms on each count.          Pursuant to a

plea agreement, Mondragon pled guilty to conspiracy to distribute

and possess with intent to distribute more than five kilograms of

cocaine, in violation of 21 U.S.C. § 846 (Count One), and money

laundering and aiding and abetting the same, in violation of 18

U.S.C.A. § 1956(a)(1)(A)(i), (a)(1)(B)(i) (West 2000 & Supp. 2008),

and 18 U.S.C. § 2 (Count Nine).           The district court sentenced

Mondragon to concurrent eighty-seven-month prison terms on each

count.

           Borja and Mondragon now challenge their convictions and

sentences in these consolidated appeals.          Their attorneys have


                                  - 3 -
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, in Borja’s case, the sentence imposed was

unreasonable.     Although each was advised of his right to do so,

neither Borja nor Mondragon has filed a supplemental pro se brief.

For the following reasons, we affirm.

            We   review   sentences   imposed   by   district    courts   for

reasonableness, applying an abuse of discretion standard.           Gall v.

United States, 
128 S. Ct. 586
, 597-98 (2007); United States v.

Pauley, 
511 F.3d 468
, 473-74 (4th Cir. 2007) (discussing procedure

district courts must follow in sentencing defendants).           This court

presumes that a sentence imposed within the properly calculated

Guidelines range is reasonable. United States v. Go, 
517 F.3d 216
,

218 (4th Cir. 2008); see Rita v. United States, 
127 S. Ct. 2456
,

2462-69 (2007) (upholding presumption of reasonableness for within-

Guidelines sentence).

            Here, the district court properly calculated Borja’s and

Mondragon’s Guidelines ranges, appropriately treated the Guidelines

as advisory, and considered the factors set forth in 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2008).        Each Appellant was sentenced

at the bottom of the applicable Guidelines range and below the

statutory    maximum.      We   considered   the     arguments   raised   in

Appellants’ brief and the records in each case, and find no




                                   - 4 -
information to rebut the presumption that the properly calculated

advisory Guidelines sentences are reasonable.

          As required by Anders, we have reviewed the record in

each case and have found no meritorious issues for appeal.              We

therefore affirm Borja’s and Mondragon’s convictions and sentences.

          This   court   requires   that   counsel    inform   Borja   and

Mondragon, in writing, of the right to petition the Supreme Court

of the United States for further review.             If either Borja or

Mondragon requests that a petition be filed, but his 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 her

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




                                - 5 -

Source:  CourtListener

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