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United States v. Luis Ramirez, 14-4763 (2015)

Court: Court of Appeals for the Fourth Circuit Number: 14-4763 Visitors: 235
Filed: Jun. 01, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4763 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LUIS ANTONIO RAMIREZ, a/k/a AntonioNC1966, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., Senior District Judge. (1:14-cr-00070-JAB-1) Submitted: May 5, 2015 Decided: June 1, 2015 Before SHEDD, FLOYD, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinio
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                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4763


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LUIS ANTONIO RAMIREZ, a/k/a AntonioNC1966,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:14-cr-00070-JAB-1)


Submitted:   May 5, 2015                      Decided:   June 1, 2015


Before SHEDD, FLOYD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mark R. Sigmon, GRAEBE HANNA & SULLIVAN, PLLC, Raleigh, North
Carolina, for Appellant.   Anand P. Ramaswamy, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Luis Antonio Ramirez appeals the district court’s judgment

sentencing        him    to   225    months’         imprisonment      for    enticing      and

coercing      a    minor      to   engage    in      sexually     explicit      conduct      to

produce child pornography, in violation of 18 U.S.C. § 2251(a),

(e) (2012).            In accordance with Anders v. California, 
386 U.S. 738
  (1967),       Ramirez’s       counsel       filed    a    brief    certifying         that

there   are       no    meritorious       grounds       for    appeal    but    questioning

whether    the     district        court    imposed       an    unreasonable         sentence.

Ramirez filed a pro se supplemental brief, alleging that his

guilty plea was not entered knowingly and voluntarily and that

trial and appellate counsel rendered ineffective assistance.

      A defendant’s guilty plea is valid where he voluntarily,

knowingly,        and     intelligently          pleads       guilty    “with      sufficient

awareness          of      the       relevant          circumstances           and     likely

consequences.”             Brady     v.    United      States,     
397 U.S. 742
,   748

(1970).     Because Ramirez did not move to withdraw his plea in

the   district          court,     the    Fed.    R.    Crim.    P.    11    proceeding      is

reviewed for plain error.                  United States v. Martinez, 
277 F.3d 517
, 527 (4th Cir. 2002).                  Our review of the record shows that

the district court complied with Rule 11 and that Ramirez’s plea

was knowing and voluntary.

      Next, we review Ramirez’s sentence for reasonableness using

an abuse-of-discretion standard.                       Gall v. United States, 552

                                                 
2 U.S. 38
,    51    (2007).       We     must    first    review     for    “significant

procedural          error,”       including        improperly        calculating        the

Sentencing Guidelines range, failing to consider the 18 U.S.C.

§ 3553(a) factors, sentencing based on clearly erroneous facts,

or failing to adequately explain the sentence.                       
Id. If we
find no significant procedural error, we examine the

substantive reasonableness of the sentence under “the totality

of    the   circumstances.”             
Id. The sentence
     imposed    must   be

“sufficient,        but    not    greater     than      necessary”     to    satisfy    the

goals    of    sentencing.          See    18     U.S.C.    § 3553(a)       (2012).      We

presume on appeal that a sentence within a properly calculated

Guidelines range is reasonable.                   United States v. Louthian, 
756 F.3d 295
, 306 (4th Cir.), cert. denied, 
135 S. Ct. 421
(2014).

The    appellant      bears      the    burden     to   rebut   the    presumption      by

showing that the sentence is unreasonable when measured against

the § 3553(a) factors.            
Id. Here, Ramirez
     received         an      adequate,        individualized

explanation         of    his     properly        calculated,        within-Guidelines

sentence.       Our review of the record leads us to conclude that

his     sentence         was     neither      procedurally       nor        substantively

unreasonable.

       Finally, we consider whether Ramirez’s trial and appellate

counsel       rendered         ineffective        assistance.           “It     is     well

established that a defendant may raise a claim of ineffective

                                              3
assistance of counsel in the first instance on direct appeal if

and only if it conclusively appears from the record that counsel

did   not    provide      effective             assistance.”             United     States      v.

Galloway,     
749 F.3d 238
,    241         (4th     Cir.)   (internal       quotation

marks, brackets, and ellipsis omitted), cert. denied, 
135 S. Ct. 215
  (2014).        Absent      such       a       showing,      ineffective       assistance

claims    should     be   raised       in       a       motion   brought      pursuant     to   28

U.S.C. § 2255 (2012), in order to permit sufficient development

of the record.        United States v. Baptiste, 
596 F.3d 214
, 216 n.1

(4th Cir. 2010).          Having reviewed the record, we conclude that

Ramirez has not made the requisite showing.                              Thus, if he wishes

to challenge the effectiveness of his counsel, his claim is best

presented in a motion under 28 U.S.C. § 2255.

      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 Ramirez, in writing, of the right

to petition the Supreme Court of the United States for further

review.      If     Ramirez      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 Ramirez.



                                                    4
     We dispense with oral argument because the facts and legal

contentions   are   adequately   presented   in   the   materials   before

this court and argument would not aid the decisional process.



                                                                AFFIRMED




                                   5

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