Filed: Apr. 29, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4635 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MISAEL AVELLANEDA-CAMPOS, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., Chief District Judge. (1:11-cr-00298-WO-1) Submitted: April 25, 2013 Decided: April 29, 2013 Before AGEE and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4635 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MISAEL AVELLANEDA-CAMPOS, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., Chief District Judge. (1:11-cr-00298-WO-1) Submitted: April 25, 2013 Decided: April 29, 2013 Before AGEE and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per c..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4635
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MISAEL AVELLANEDA-CAMPOS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:11-cr-00298-WO-1)
Submitted: April 25, 2013 Decided: April 29, 2013
Before AGEE and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
George E. Crump, III, LAW OFFICE OF GEORGE E. CRUMP, III,
Rockingham, North Carolina, for Appellant. Angela Hewlett
Miller, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Misael Avellaneda-Campos (“Campos”) pled guilty,
without a plea agreement, to illegal reentry following a
conviction for an aggravated felony in violation of 8 U.S.C.
§ 1326(a), (b)(2) (2006), and was sentenced to seventy-two
months’ imprisonment. He appeals. Campos’ attorney has filed a
brief in accordance with Anders v. California, 386 U.S. 738
(1967), in which he asserts that there are no meritorious issues
for appeal but challenges Campos’ sentence. Although advised of
his right to file a supplemental pro se brief, Campos has not
done so. Finding no error, we affirm.
Counsel first questions whether the district court
plainly erred by failing to compel the Government to move for a
reduction in offense level under U.S. Sentencing Guidelines
Manual § 3E1.1(b) (2011) for acceptance of
responsibility. See United States v. Olano, 507 U.S. 725, 732
(1993) (applying plain error standard for unpreserved error).
At sentencing, the court applied a two-level reduction for
acceptance of responsibility under USSG § 3E1.1(a). An
additional one-level acceptance of responsibility reduction was
possible only if the Government moved for the reduction. See
USSG § 3E1.1(b). The district court did not plainly err by
refusing to compel the Government to move for this additional
reduction because Campos did not plead guilty until the day of
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trial. See USSG § 3E1.1 cmt. n.6. (“[t]o qualify under
subsection (b), the defendant must have notified authorities of
his intention to enter a plea of guilty at a sufficiently early
point in the process so that the government may avoid preparing
for trial and the court may schedule its calendar
efficiently.”).
Counsel also challenges the substantive reasonableness
of Campos’ within-Guidelines sentence. We review Campos’
sentence for reasonableness, applying an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). This
review requires consideration of both the procedural and
substantive reasonableness of the sentence. Id. We assess
whether the district court properly calculated the advisory
Guidelines range, considered the factors set forth in 18 U.S.C.
§ 3553(a) (2006), analyzed any arguments presented by the
parties, and sufficiently explained the selected sentence. Id.
at 49–50; see United States v. Lynn,
592 F.3d 572, 575–76 (4th
Cir. 2010). If there is no procedural error, we review the
substantive reasonableness of the sentence, “examin[ing] the
totality of the circumstances to see whether the sentencing
court abused its discretion in concluding that the sentence it
chose satisfied the standards set forth in § 3553(a).” United
States v. Mendoza–Mendoza,
597 F.3d 212, 216 (4th Cir. 2010).
If the sentence is within the Guidelines range, we apply a
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presumption of reasonableness. Rita v. United States, 551 U.S.
338, 346–56 (2007) (upholding presumption of reasonableness for
within-Guidelines sentence).
We have thoroughly reviewed the record and conclude
that the sentence is both procedurally and substantively
reasonable. Moreover, Campos has failed to overcome the
presumption of reasonableness we accord his within-Guidelines
sentence.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Campos’ conviction and sentence. This court
requires that counsel inform Campos, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Campos 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 Campos. 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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