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United States v. Daniel Cortez-Meza, 10-4346 (2011)

Court: Court of Appeals for the Fourth Circuit Number: 10-4346 Visitors: 24
Filed: Dec. 13, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4346 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL CORTEZ-MEZA, a/k/a Daniel Herrera, Defendant - Appellant. No. 10-4347 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALEJANDRO ZAVALA-LOPEZ, a/k/a Alejandro Zavala, Defendant - Appellant. No. 10-4573 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CARLOS ALEX HERNANDEZ-RODRIGUEZ, a/k/a Alex, a/k/a Sergio Mendoza Gallardo, Defendant - Appellant. Appeals f
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                            UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                            No. 10-4346


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

DANIEL CORTEZ-MEZA, a/k/a Daniel Herrera,

               Defendant - Appellant.



                            No. 10-4347


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

ALEJANDRO ZAVALA-LOPEZ, a/k/a Alejandro Zavala,

               Defendant - Appellant.



                            No. 10-4573


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.
CARLOS ALEX HERNANDEZ-RODRIGUEZ, a/k/a Alex, a/k/a Sergio
Mendoza Gallardo,

                Defendant - Appellant.



Appeals from the United States District Court for the District
of South Carolina, at Columbia.        Cameron McGowan Currie,
District   Judge.    (3:09-cr-00390-CMC-7;  3:09-cr-00390-CMC-8;
3:09-cr-00390-CMC-2)


Submitted:   November 28, 2011           Decided:   December 13, 2011


Before WILKINSON, MOTZ, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Ola A. Johnson, Lexington, South Carolina; Debra Y. Chapman,
DEBRA Y. CHAPMAN, PA, Columbia, South Carolina; Jonathan M.
Milling, MILLING LAW FIRM, LLC, Columbia, South Carolina, for
Appellants.    Robert Claude Jendron, Jr., Mark C. Moore,
Assistant United States Attorneys, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                 2
PER CURIAM:

              Daniel   Cortez-Meza       and    Alejandro     Zavala-Lopez           pled

guilty, pursuant to written plea agreements, to conspiracy to

distribute five kilograms or more of cocaine, in violation of 21

U.S.C.     § 846     (2006),    and      possession    with     the       intent      to

distribute     a    quantity   of   cocaine,     in   violation      of    21   U.S.C.

§ 841(a)(1), (b)(1)(C) (2006).                Carlos Hernandez-Rodriguez pled

guilty, pursuant to a written plea agreement, to conspiracy to

distribute 50 grams or more of methamphetamine, 5 kilograms or

more of cocaine, and 500 grams or more of a mixture containing a

detectable amount of methamphetamine, in violation of 21 U.S.C.

§ 846, and conspiracy to commit money laundering, in violation

of 18 U.S.C. § 1956(h) (2006).                 Both Cortez-Meza and Zavala-

Lopez were sentenced to the 120-month statutory minimum sentence

for   their    crimes.     Hernandez-Rodriguez         was     sentenced        to    240

months’ imprisonment, a downward variance from the Guidelines

range.

              Appellants’ attorneys submitted a consolidated brief

in accordance with Anders v. California, 
386 U.S. 738
(1967),

questioning the        adequacy     of   Appellants’    Fed.    R.    Crim.      P.    11

hearings      and    whether   Appellants’        sentences     are       reasonable.

Although each Appellant received notice of his right to file a




                                          3
pro se supplemental brief, only Zavala-Lopez did so. 1                           Because we

find no meritorious grounds for appeal, we affirm the district

court’s judgments.

               Appellants first question whether the district court

adequately advised them during their Rule 11 hearings.                              Prior to

accepting a guilty plea, a district court must conduct a plea

colloquy in which it informs the defendant of, and determines

that    the    defendant       comprehends,      the   nature       of     the   charge    to

which he is pleading guilty, any mandatory minimum penalty, the

maximum       possible       penalty   he    faces,     and        the     rights     he   is

relinquishing         by    pleading   guilty.         Fed.    R.     Crim.      P.    11(b);

United States v. DeFusco, 
949 F.2d 114
, 116 (4th Cir. 1991).

Additionally, the district court “must determine that there is a

factual       basis    for    the   plea.”       Fed.    R.        Crim.    P.    11(b)(3).

Finally, the district court must ensure that the defendant’s

plea was voluntary and did not result from force, threats, or

promises not contained in the plea agreement.                         Fed. R. Crim. P.

11(b)(2).        “In reviewing the adequacy of compliance with Rule

11,    this    Court       should   accord   deference        to    the    trial      court’s


       1
        With regard to Zavala-Lopez’s claim of ineffective
assistance of counsel, we decline to address this claim because
it is not cognizable on direct appeal where, as here, there is
no conclusive evidence supporting his claim apparent on the face
of the record.   United States v. King, 
119 F.3d 290
, 295 (4th
Cir. 1997).



                                             4
decision as to how best to conduct the mandated colloquy with

the defendant.”       
DeFusco, 949 F.2d at 116
.

           Because Appellants did not move in the district court

to   withdraw      their    guilty    pleas,       any    error    in    the     Rule     11

hearings     is    reviewed     for    plain       error.         United       States     v.

Martinez, 
277 F.3d 517
, 525 (4th Cir. 2002).                      To establish plain

error, Appellants “must show: (1) an error was made; (2) the

error is plain; and (3) the error affects substantial rights.”

United   States     v.     Massenburg,      
564 F.3d 337
,    342-43      (4th     Cir.

2009).     However,        “[t]he    decision      to    correct       the    error     lies

within our discretion, and we exercise that discretion only if

the error seriously affects the fairness, integrity or public

reputation    of    judicial        proceedings.”          
Id. at 343
    (internal

quotation marks omitted).

           We have thoroughly reviewed the records in this case

and conclude that the district court fully complied with Rule 11

in   accepting     guilty     pleas    from      Cortez-Meza      and    Zavala-Lopez.

Although     the    district        court       made     one   minor         omission    in

Hernandez-Rodriguez’s plea hearing by failing to inform him of

the penalties for perjury if he lied under oath, that omission

did not affect Hernandez-Rodriguez’s substantial rights.                                See

id. at 344
(“[T]he mere existence of an error cannot satisfy the

requirement that [defendant] show that his substantial rights

were affected.”).           Moreover, each Appellant’s plea was knowing

                                            5
and   voluntary,        and    each    plea    was     adequately       supported         by   a

factual basis.          See 
DeFusco, 949 F.2d at 116
, 119-20.

            Appellants also question the reasonableness of their

sentences.        This court reviews a sentence for reasonableness

applying     an     abuse-of-discretion              standard.         Gall       v.     United

States, 
552 U.S. 38
, 51 (2007).                     In determining the procedural

reasonableness of a sentence, we consider whether the district

court    properly        calculated      the       Guidelines    range,       treated      the

Guidelines        as     advisory,      considered       the      § 3553(a)            factors,

analyzed     any         arguments       presented        by     the      parties,          and

sufficiently explained the selected sentence.                          
Id. Finally, we
review     the         substantive       reasonableness          of     the        sentence,

“examin[ing] the totality of the circumstances.”                             United States

v. Mendoza-Mendoza, 
597 F.3d 212
, 216 (4th Cir. 2010).

            Because           Appellants       did     not      request       a        sentence

different than the sentences ultimately imposed, the sentences

are reviewed for plain error.                  United States v. Lynn, 
592 F.3d 572
, 578 (4th Cir. 2010); see 
Massenburg, 564 F.3d at 342-43
(discussing plain error standard).                      Here, the district court

followed      the        necessary       procedural          steps      in        sentencing

Appellants,         properly          calculating        the      Guidelines             range,

considering the § 3553(a) factors, and sentencing each Appellant

to the very sentence he requested: in the cases of Cortez-Meza

and Zavala-Lopez, to the mandatory minimum sentences, and in the

                                               6
case of Hernandez-Rodriguez, a downward variant sentence well

below his advisory Guidelines range. 2               Hence, we conclude that

the sentences imposed by the district court were reasonable.

            In accordance with Anders, we have reviewed the record

in these cases and have found no meritorious issues for appeal.

We therefore affirm the district court’s judgments.                     This court

requires that counsel inform Appellants in writing of the right

to petition the Supreme Court of the United States for further

review.    If Appellants request that such petitions be filed, but

counsel believes that the petitions 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 respective Appellant.

            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




     2
       In his pro se brief, Zavala-Lopez contends the district
court failed to make a proper drug quantity finding and failed
to adequately explain the basis for the sentence it imposed. We
have carefully considered Zavala-Lopez’s arguments and conclude
they are without merit.




                                         7

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