Filed: Jul. 06, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4099 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JAVIER BELTRAN VALDERRAMA, Defendant – Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., Senior District Judge. (1:07-cr-00200-NCT-8) Submitted: June 2, 2009 Decided: July 6, 2009 Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Robert J.
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4099 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JAVIER BELTRAN VALDERRAMA, Defendant – Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., Senior District Judge. (1:07-cr-00200-NCT-8) Submitted: June 2, 2009 Decided: July 6, 2009 Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Robert J. M..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4099
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAVIER BELTRAN VALDERRAMA,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:07-cr-00200-NCT-8)
Submitted: June 2, 2009 Decided: July 6, 2009
Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert J. McAfee, MCAFEE LAW, P.A., New Bern, North Carolina,
for Appellant. Sandra Jane Hairston, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Javier Beltran Valderrama pled guilty pursuant to a
written plea agreement to one count of conspiracy to distribute
5 kilograms or more of cocaine hydrochloride, in violation of
21 U.S.C. §§ 841(b)(1)(A), 846 (2006). The district court
sentenced Valderrama to 120 months’ imprisonment, the minimum
imprisonment term required by statute. He now appeals.
Counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating that there are no meritorious issues
for appeal. Valderrama has filed a document we construe as a
pro se supplemental brief. We affirm.
To the extent that Valderrama claims that his guilty
plea was not knowingly and voluntarily made, we review this
claim for plain error, as Valderrama did not move in the
district court to withdraw his guilty plea. United States v.
Vonn, 535 U.S. 55, 59 (2002); United States v. Martinez,
277
F.3d 517, 524-26 (4th Cir. 2002). To ensure the voluntariness
of a guilty plea, the district court must conduct a plea
colloquy that substantially complies with the requirements of
Fed. R. Crim. P. 11. Under the plain error standard, Valderrama
must show that an error or omission in the plea colloquy
affected his substantial rights, meaning that, but for the
error, he would not have pled guilty. See United States v.
Muhammad,
478 F.3d 247, 249 (4th Cir. 2007). Our review of the
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transcript of the plea hearing leads us to conclude that the
district court substantially complied with the mandates of Fed.
R. Crim. P. 11 in accepting Valderrama’s guilty plea and that
the court’s omissions did not affect Valderrama’s substantial
rights. Critically, the district court ensured that the plea
was supported by an independent factual basis and that
Valderrama entered the plea knowingly and voluntarily with a
full understanding of the consequences. See United States v.
DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). Further,
Valderrama does not suggest that he would have declined to plead
guilty had the district court’s Rule 11 colloquy been more
exacting.
Although Valderrama now claims that he did not engage
in any illegal behavior, this assertion is contradicted by his
sworn testimony at the Rule 11 hearing, which is presumed to be
true. See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
This court has held that when a defendant subsequently claims to
have lied during the Rule 11 colloquy, “he bears a heavy burden
in seeking to nullify the process.” United States v. Bowman,
348 F.3d 408, 417 (4th Cir. 2003). After review of the record,
however, we conclude that Valderrama fails to meet this burden
as he fails to put forth any reason why his testimony accepting
guilt at the Rule 11 hearing should not be accepted as true.
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Accordingly, because Valderrama’s guilty plea was knowingly and
voluntarily made, we discern no plain error.
We turn next to Valderrama’s 120-month prison
sentence. We review a criminal defendant’s sentence for abuse
of discretion. Gall v. United States, 552 U.S. 38,
128 S. Ct.
586, 597 (2007). The first step in this review requires us to
ensure that the district court committed no significant
procedural error, such as improperly calculating the Guideline
range. United States v. Osborne,
514 F.3d 377, 387 (4th Cir.),
cert. denied,
128 S. Ct. 2525 (2008). We then consider the
substantive reasonableness of the sentence imposed, taking into
account the totality of the circumstances.
Gall, 128 S. Ct. at
597. When reviewing a sentence on appeal, we presume that a
sentence within a properly calculated Guideline range is
reasonable. United States v. Allen,
491 F.3d 178, 193 (4th Cir.
2007). Further, a statutorily required sentence is per se
reasonable. United States v. Farrior,
535 F.3d 210, 224
(4th Cir. 2008).
We have reviewed the record and conclude that the
district court did not err or abuse its discretion in sentencing
Valderrama, and his sentence is reasonable. Valderrama was
subject to a mandatory minimum prison term of ten years under 21
U.S.C. § 841(b)(1)(A). Although Valderrama’s initial Guidelines
range would have been 97 to 121 months had he not been subject
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to the statutory minimum, the district court properly took the
mandatory minimum into account and correctly calculated
Valderrama’s Guidelines range at 120 to 121 months. The court
gave the parties an opportunity to argue for an appropriate
sentence in that range and heard from Valderrama. The 120-month
prison sentence Valderrama received was within the properly-
calculated Guidelines range and the minimum required by statute.
Finally, as to Valderrama’s claim that counsel
rendered ineffective assistance, we conclude that this claim is
more appropriately raised in a motion filed pursuant to 28
U.S.C.A. § 2255 (West 2008), unless counsel’s alleged
deficiencies conclusively appear on the record. See United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Since
none of the issues raised by Valderrama have any merit, we find
no conclusive evidence that counsel rendered ineffective
assistance.
As required by Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm the district court’s judgment. This court
requires that counsel inform Valderrama, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Valderrama 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
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withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Valderrama. 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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