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United States v. Jose Mercado, 11-4530 (2012)

Court: Court of Appeals for the Fourth Circuit Number: 11-4530 Visitors: 28
Filed: Jan. 12, 2012
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4530 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSE SALAZAR MERCADO, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:10-cr-00300-WO-1) Submitted: November 30, 2011 Decided: January 12, 2012 Before GREGORY, SHEDD, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen
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                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4530


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOSE SALAZAR MERCADO,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:10-cr-00300-WO-1)


Submitted:   November 30, 2011            Decided:   January 12, 2012


Before GREGORY, SHEDD, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen III, Federal Public Defender, Mireille P. Clough,
Assistant   Federal   Public   Defender,   Winston-Salem,  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Unpublished opinions are not binding precedent in this circuit.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:

              Jose Salazar Mercado pled guilty, with the benefit of

a written plea agreement, to distributing fifty grams or more of

a   mixture     and       substance     containing           a    detectable       amount     of

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

(b)(1)(B) (West 1999 & Supp. 2011), and possession of a firearm

in furtherance of a drug trafficking crime, in violation of 18

U.S.C.   §    924(c)(1)(A)       (2006).           The    district         court    sentenced

Mercado to the sixty-month mandatory minimum sentence for each

offense,      to     be     served     consecutively.               Mercado’s           attorney

submitted a brief in accordance with Anders v. California, 
386 U.S. 738
   (1967),       questioning          whether        Mercado’s       sentence     is

reasonable.        Although Mercado received notice of his right to

file a pro se supplemental brief, he did not do so.                                Because we

find no meritorious grounds for appeal, we affirm the district

court’s judgment.

              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      18   U.S.C.      § 3553(a)

(2006) factors, analyzed any arguments presented by the parties,

and sufficiently explained the selected sentence.                            
Id. Finally, 2
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 Mercado did not request a sentence different

than the sentence ultimately imposed, our review is for plain

error.      United States v. Lynn, 
592 F.3d 572
, 580 (4th Cir.

2010); see United States v. Massenburg, 
564 F.3d 337
, 342-43

(4th Cir. 2009) (discussing plain error standard).                                  Here, the

district        court      followed    the     necessary        procedural          steps   in

sentencing Mercado, properly calculating the Guidelines range,

considering the § 3553(a) factors, and sentencing Mercado to the

very sentence he requested — the mandatory minimum sentence on

each count.          As to substantive reasonableness, “[a] statutorily

required        [mandatory      minimum]       sentence        .     .    .    is     per   se

reasonable.”         United States v. Farrior, 
535 F.3d 210
, 224 (4th

Cir.    2008).        Hence,    we    conclude      that      the   120-month        sentence

imposed by the district court was reasonable.

            In accordance with 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 Mercado in writing, of the right to

petition    the      Supreme    Court    of       the   United      States     for    further

review.         If   Mercado    requests      that      a    petition     be    filed,      but

counsel believes that such a petition would be frivolous, then

                                              3
counsel    may    move   in    this   court   for    leave   to   withdraw   from

representation.      Counsel’s motion must state that a copy thereof

was served on Mercado.

            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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Source:  CourtListener

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