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United States v. Mauricio Murillo, 13-4168 (2013)

Court: Court of Appeals for the Fourth Circuit Number: 13-4168 Visitors: 13
Filed: Nov. 14, 2013
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4168 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MAURICIO GOCHEZ MURILLO, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:12-cr-00230-TDS-1) Submitted: November 6, 2013 Decided: November 14, 2013 Before SHEDD and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed and remanded by unpubl
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                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 13-4168


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MAURICIO GOCHEZ MURILLO,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:12-cr-00230-TDS-1)


Submitted:   November 6, 2013              Decided:   November 14, 2013


Before SHEDD and    AGEE,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed and remanded by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant.    Andrew Charles Cochran, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Mauricio Gochez Murillo appeals his sentence totaling

130 months in prison after pleading guilty to interference with

commerce by robbery in violation of 18 U.S.C. § 1951(a) (2006),

brandishing        a    firearm     during   and    in    relation      to   a    crime   of

violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (2006),

and illegal reentry of a deported alien in violation of 8 U.S.C.

§ 1326(a) (2006).           Murillo’s attorney has filed a brief pursuant

to Anders v. California, 
386 U.S. 738
(1967), asserting, in his

opinion, there are no meritorious grounds for appeal but raising

the issue of whether the district court erred by imposing a

sentence of 130 months imprisonment.                       Murillo was notified of

his right to file a pro se supplemental brief but has not done

so.      We   affirm       Murillo’s     sentence        and    the    district    court’s

judgment, but we remand for the purpose of correcting a clerical

error in the written judgment under Fed. R. Crim. P. 36.

              We       review   a   sentence     under    a     deferential       abuse-of-

discretion standard.                Gall v. United States, 
552 U.S. 38
, 51

(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    Guidelines    range,

failing to consider the 18 U.S.C. § 3553(a) (2006) factors, or

failing to adequately explain the sentence.                           United States v.

Carter, 
564 F.3d 325
, 328 (4th Cir. 2009).                           If the sentence is

                                             2
procedurally       reasonable,         we   then     consider        the    substantive

reasonableness of the sentence imposed, taking into account the

totality      of   the   circumstances.            
Gall, 552 U.S. at 51
.     We

presume that a sentence within a properly calculated Guidelines

range is substantively reasonable.                   United States v. Susi, 
674 F.3d 278
, 289 (4th Cir. 2012).                 Moreover, 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

Murillo’s sentence is procedurally and substantively reasonable,

and the district court did not err or abuse its discretion in

sentencing him to 130 months in prison.                          The district court

properly      calculated         his    Guidelines         range     and        reasonably

determined that a sentence within the range on counts one and

three, followed by the mandatory consecutive seven-year prison

term on count two, was appropriate in this case.

              As   to    count    three,    the     district     court     adopted     the

presentence report and determined that Murillo’s removal from

the United States in 2009 was subsequent to his conviction for a

felony   in    2006,     and     the   court    correctly     applied      the     penalty

provisions under 8 U.S.C. § 1326(b)(1) (2006); U.S. Sentencing

Guidelines Manual § 2L1.2 (2012).                  However, the written judgment

erroneously states that Murillo was convicted of illegal reentry

of an aggravated felon.            See 8 U.S.C. § 1326(b)(2) (2006).

                                            3
            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.    Accordingly, we affirm the district court’s judgment,

but we remand to the district court with instructions to correct

the written judgment to conform to the court’s oral findings.

            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 AND REMANDED




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Source:  CourtListener

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