Filed: Nov. 29, 2016
Latest Update: Mar. 03, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4312 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICARDO REYNSO REBOLLAR, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:15-cr-00020-RJC-2) Submitted: November 15, 2016 Decided: November 29, 2016 Before WILKINSON, KING, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Stacey A.
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4312 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICARDO REYNSO REBOLLAR, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:15-cr-00020-RJC-2) Submitted: November 15, 2016 Decided: November 29, 2016 Before WILKINSON, KING, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Stacey A. ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4312
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICARDO REYNSO REBOLLAR,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:15-cr-00020-RJC-2)
Submitted: November 15, 2016 Decided: November 29, 2016
Before WILKINSON, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Stacey A. Phipps, Raleigh, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricardo Reynso Rebollar pled guilty pursuant to a plea
agreement to conspiracy to distribute and possess with intent to
distribute 5 kilograms or more of cocaine, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2012). The district
court calculated Rebollar’s Guidelines range under the
U.S. Sentencing Guidelines Manual (2014) at 168 to 210 months’
imprisonment and sentenced Rebollar to 168 months’ imprisonment.
On appeal, counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal, but raising as issues for review
whether the district court reversibly erred in accepting
Rebollar’s guilty plea, whether the district court abused its
discretion in imposing sentence, and whether trial counsel
rendered ineffective assistance. Rebollar was informed of his
right to file a pro se supplemental brief, but he has not done
so. The Government elected not to file a brief and does not
seek to enforce the appeal waiver in Rebollar’s plea agreement. *
We affirm.
*Because the Government fails to assert the waiver as a bar
to the appeal, we may consider the issues raised by counsel and
conduct an independent review of the record pursuant to Anders.
United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).
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Because Rebollar did not move in the district court to
withdraw his guilty plea, the acceptance of his guilty plea is
reviewed for plain error only. United States v. Williams,
811 F.3d 621, 622 (4th Cir. 2016). To demonstrate plain error,
a defendant must show: (1) there was error; (2) the error was
plain; and (3) the error affected his substantial rights.
United States v. Olano,
507 U.S. 725, 732 (1993). In the guilty
plea context, a defendant meets his burden to establish that a
plain error affected his substantial rights by showing a
reasonable probability that he would not have pled guilty but
for the district court’s Fed. R. Crim. P. 11 omissions. United
States v. Massenburg,
564 F.3d 337, 343 (4th Cir. 2009).
Our review of the transcript of the guilty plea hearing
leads us to conclude that the magistrate judge’s omissions under
Rule 11 did not affect Rebollar’s substantial rights.
Additionally, the transcripts of the guilty plea and sentencing
hearings reveal that the magistrate judge and district court
ensured that the plea was supported by an independent basis in
fact and that Rebollar entered the plea knowingly and
voluntarily with an understanding of the consequences.
Accordingly, we discern no plain error in the district court’s
acceptance of Rebollar’s guilty plea. See United States v.
DeFusco, 949 F.2d 114, 116, 120 (4th Cir. 1991).
3
Turning to Rebollar’s 168-month sentence, we review it for
reasonableness under a deferential abuse-of-discretion standard.
Gall v. United States, 552 U.S. 38, 41, 51 (2007); United
States v. Lymas,
781 F.3d 106, 111 (4th Cir. 2015). In doing
so, we first examine the sentence for procedural error, which
includes “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to consider the [18 U.S.C.] § 3553(a) [(2012)] factors,
selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence.”
Lymas,
781 F.3d at 111-12 (quoting
Gall, 552 U.S. at 51). We then
review the substantive reasonableness of the sentence, “tak[ing]
into account the totality of the circumstances.”
Gall, 552 U.S.
at 51. Any sentence within or below a properly calculated
Guidelines range is presumptively substantively reasonable.
United States v. Louthian,
756 F.3d 295, 306 (4th Cir. 2014).
Such a presumption can only be rebutted by a showing that the
sentence is unreasonable when measured against the § 3553(a)
factors.
Id.
In this case, the district court did not reversibly err in
calculating the Guidelines range and properly heard argument
from counsel and allocution from Rebollar. The court explained
that the within-Guidelines sentence of 168 months’ imprisonment
was warranted in light of the nature and seriousness of
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Rebollar’s offense conduct, to promote respect for the law, to
provide just punishment, to afford adequate deterrence, to
protect the public, and to avoid unwarranted sentencing
disparities. 18 U.S.C. § 3553(a)(1), (2)(A)-(C), (6). Rebollar
does not offer any grounds to rebut the presumption on appeal
that his within-Guidelines sentence is substantively reasonable.
Accordingly, we conclude that the district court did not abuse
its discretion in sentencing Rebollar.
With respect to ineffective assistance of counsel, unless
an attorney’s ineffectiveness conclusively appears on the face
of the record, ineffective assistance claims generally are not
addressed on direct appeal. United States v. Benton, 523 F.3d
424, 435 (4th Cir. 2008). Because the record does not
conclusively establish ineffective assistance by Rebollar’s
trial counsel, we deem this claim inappropriate for resolution
on direct appeal. See United States v. Baptiste,
596 F.3d 214,
216 n.1 (4th Cir. 2010).
Finally, in accordance with Anders, we have reviewed the
remainder of 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
Rebollar, in writing, of the right to petition the Supreme Court
of the United States for further review. If Rebollar requests
that a petition be filed, but counsel believes that such a
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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 Rebollar.
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
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