Filed: Jun. 11, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4675 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ELEAZER ROMERO JIMENEZ, a/k/a Machine, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:13-cr-00057-MOC-1) Submitted: May 20, 2015 Decided: June 11, 2015 Before MOTZ, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Diana St
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4675 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ELEAZER ROMERO JIMENEZ, a/k/a Machine, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:13-cr-00057-MOC-1) Submitted: May 20, 2015 Decided: June 11, 2015 Before MOTZ, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Diana Sta..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4675
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ELEAZER ROMERO JIMENEZ, a/k/a Machine,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:13-cr-00057-MOC-1)
Submitted: May 20, 2015 Decided: June 11, 2015
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Diana Stavroulakis, Pittsburgh, Pennsylvania, 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Unpublished opinions are not binding precedent in this circuit.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:
Eleazer Romero Jimenez appeals the district court’s
judgment and his sentence after pleading guilty to conspiracy to
possess with intent to distribute five or more kilograms of
cocaine in violation of 21 U.S.C. § 846 (2012). Jimenez’s
attorney has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), asserting that there are no meritorious grounds
for appeal but raising the issues of whether the district court
had jurisdiction over the case, whether Jimenez’s guilty plea
was knowing and voluntary, whether his appeal waiver was knowing
and voluntary, and whether his sentence was reasonable. Jimenez
has filed a pro se supplemental brief arguing that the district
court did not have jurisdiction over his case. We affirm.
First, because Jimenez was indicted and pled guilty to a
federal crime, the district court had jurisdiction over the case
pursuant to 18 U.S.C. § 3231 (2012). Counsel next raises the
issue of whether Jimenez’s plea was knowing and voluntary.
“[F]or a guilty plea to be valid, the Constitution imposes
‘the minimum requirement that [the] plea be the voluntary
expression of [the defendant’s] own choice.’” United States v.
Moussaoui, 591 F.3d 263, 278 (4th Cir. 2010) (quoting Brady v.
United States,
397 U.S. 742, 748 (1970)). “It must reflect a
voluntary and intelligent choice among the alternative courses
of action open to the defendant.”
Id. (citation and internal
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quotation marks omitted). “In evaluating the constitutional
validity of a guilty plea, courts look to the totality of the
circumstances surrounding [it], granting the defendant’s solemn
declaration of guilt a presumption of truthfulness.” Id.
(citation and internal quotation marks omitted).
In federal cases, Rule 11 of the Federal Rules of Criminal
Procedure “governs the duty of the trial judge before accepting
a guilty plea.” Boykin v. Alabama, 395 U.S. 238, 243 n.5
(1969). Rule 11 “requires a judge to address a defendant about
to enter a plea of guilty, to ensure that he understands the law
of his crime in relation to the facts of his case, as well as
his rights as a criminal defendant.” United States v. Vonn,
535
U.S. 55, 62 (2002). We “accord deference to the trial court’s
decision as to how best to conduct the mandated colloquy.”
United States v. DeFusco,
949 F.2d 114, 116 (4th Cir. 1991). A
guilty plea may be knowingly and intelligently made based on
information received before the plea hearing. See
id. at 117;
see also Bradshaw v. Stumpf,
545 U.S. 175, 183 (2005) (trial
court may rely on counsel’s assurance that the defendant was
properly informed of the elements of the crime).
“A federal court of appeals normally will not correct a
legal error made in criminal trial court proceedings unless the
defendant first brought the error to the trial court’s
attention.” Henderson v. United States, 133 S. Ct. 1121, 1124
3
(2013) (citing United States v. Olano, 507 U.S. 725, 731
(1993)). Federal Rule of Criminal Procedure 52(b) creates an
exception to the normal rule, providing “[a] plain error that
affects substantial rights may be considered even though it was
not brought to the court’s attention.” Fed. R. Crim. P. 52(b).
When a defendant does not seek to withdraw his guilty plea
in the district court, we review any claims that the court erred
at his guilty plea hearing for plain error. United States v.
Martinez, 277 F.3d 517, 524, 527 (4th Cir. 2002). It is the
defendant’s burden to show (1) error; (2) that was plain; (3)
affecting his substantial rights; and (4) that we should
exercise our discretion to notice the error. See
id. at 529,
532. To show prejudice, he “must show a reasonable probability
that, but for the error, he would not have entered the plea.”
United States v. Dominguez Benitez,
542 U.S. 74, 83 (2004).
We have reviewed the record and conclude that Jimenez fails
to show any plain error by the district court, and his guilty
plea was knowing and voluntary based on a totality of the
circumstances. Jimenez pled guilty because he was guilty, and
he received a substantial benefit from his plea agreement. His
decision to plead guilty was a voluntary and intelligent choice
among the alternative choices of action open to him.
Counsel next questions whether Jimenez’s appeal waiver was
knowing and voluntary. “Plea bargains rest on contractual
4
principles, and each party should receive the benefit of its
bargain.” United States v. Blick, 408 F.3d 162, 173 (4th Cir.
2005) (citation and internal quotations omitted). “A defendant
may waive the right to appeal his conviction and sentence so
long as the waiver is knowing and voluntary.” United States v.
Davis,
689 F.3d 349, 354 (4th Cir. 2012) (citing United States
v. Marin,
961 F.2d 493, 496 (4th Cir. 1992)). We review the
validity of an appeal waiver de novo, and we “will enforce the
waiver if it is valid and the issue appealed is within the scope
of the waiver.”
Id. (citing Blick, 408 F.3d at 168). While the
validity of an appeal waiver often depends on the adequacy of
the plea colloquy, the issue ultimately depends on the totality
of the circumstances.
Blick, 408 F.3d at 169.
We have reviewed the plea agreement and the Rule 11
hearing, and we conclude that Jimenez’s appellate waiver was
knowing and voluntary. However, because the Government has not
moved to dismiss the appeal, we decline to enforce the waiver.
Finally, counsel questions whether Jimenez’s sentence was
reasonable. We review the reasonableness of a sentence using an
abuse-of-discretion standard. United States v. Lymas, 781 F.3d
106, 111 (4th Cir. 2015) (citing Gall v. United States,
552 U.S.
38, 41 (2007)). First, we consider whether the district court
committed any significant procedural error, such as improperly
calculating the Guidelines range or failing to adequately
5
explain the sentence. Gall, 552 U.S. at 51. If the sentence is
procedurally reasonable, we then consider its substantive
reasonableness, taking into account the totality of the
circumstances.
Id. We presume that a sentence within or below
a properly calculated Guidelines range is substantively
reasonable. United States v. Susi,
674 F.3d 278, 289 (4th Cir.
2012). A defendant can only rebut the presumption by showing
the sentence is unreasonable when measured against the 18 U.S.C.
§ 3553(a) (2012) factors. United States v. Louthian,
756 F.3d
295, 306 (4th Cir.), cert. denied,
135 S. Ct. 421 (2014).
The district court “must make an individualized assessment
based on the facts presented when imposing a sentence,
apply[ing] the relevant § 3553(a) factors to the specific
circumstances of the case and the defendant, and must state in
open court the particular reasons supporting its chosen
sentence.” Lymas, 781 F.3d at 113 (citation and internal
quotation marks omitted). “[A] district court’s explanation of
its sentence need not be lengthy, but the court must offer some
individualized assessment justifying the sentence imposed and
rejection of arguments for a higher or lower sentence based on
§ 3553.”
Id. (citation and internal quotation marks omitted).
We have reviewed the record and conclude that Jimenez’s
sentence is procedurally and substantively reasonable, and the
district court did not abuse its discretion in imposing the
6
sentence. The district court correctly calculated his advisory
Guidelines range and reasonably determined that a sentence at
the bottom of the range was appropriate in this case. The court
considered but denied Jimenez’s request for a variance sentence
below the range due to the huge quantity of drugs and the extent
of his involvement as “a significant point of those drugs.”
In accordance with Anders, we have reviewed the record and
have found no meritorious issues for appeal. Accordingly, we
affirm the district court’s judgment. This court requires that
counsel inform his or her client, in writing, of his or her
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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