United States of America v. David Servin-Terrasas, a/k/a David Servin

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4969
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID SERVIN-TERRASAS, a/k/a David Servin,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (4:06-cr-00004-jlk)
Submitted: March 30, 2007 Decided: April 23, 2007
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark D. Kidd, OSTERHOUDT, PRILLAMAN, NATT, HELSCHER, YOST, MAXWELL
& FERGUSON, PLC, Roanoke, Virginia, for Appellant. Ronald Andrew
Bassford, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
David Servin-Terrasas pled guilty to possession with
intent to distribute fifty grams or more of cocaine base (Count 5)
and possession of a firearm in relation to a drug trafficking crime
(Count 6). (J.A. 11-29). He was sentenced to the statutory
minimum sentences of 120 months for Count 5 and sixty months
consecutively for Count 6. See 21 U.S.C. § 841(b)(1)(A) (2000); 18
U.S.C.A. § 924(c)(1)(A) (West Supp. 2006). On appeal, counsel has
filed a brief under Anders v. California, 386 U.S. 738 (1967),
alleging that there are no meritorious issues for appeal but
raising the following issues: whether (1) Servin-Terrasas knowingly
and intelligently pled guilty; (2) Servin-Terrasas’ sentence
violated the Eighth Amendment’s prohibition against cruel and
unusual punishment; and (3) the district court should have
conducted a sua sponte safety-valve inquiry at Servin-Terrasas’
sentencing hearing. Servin-Terrasas has been notified of his
right to file a pro se supplemental brief, but has not filed a
brief.
Servin-Terrasas’ first claim fails as we find no plain
error in how the district court conducted the guilty plea hearing.
United States v. Martinez, 277 F.3d 517, 525-26 (4th Cir. 2002)
(stating review standard). Second, we find no Eighth Amendment
error in Servin-Terrasas’ sentence as he was sentenced to the
statutory minimums within his advisory sentencing range, and his

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sentence is therefore reasonable. United States v. Johnson, 445
F.3d 339, 341 (4th Cir. 2006); United States v. Moreland, 437 F.3d
424, 433 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006).
Finally, the district court did not plainly err in failing to sua
sponte consider Servin-Terrasas for a “safety-valve” sentence under
U.S. Sentencing Guidelines Manual § 5C1.2 (2005), when Servin-
Terrasas’ related § 924(c) conviction disqualifies him for the
reduction. See USSG § 5C1.2(a)(2).
We have examined the entire record in this case in
accordance with the requirements of Anders, and find no meritorious
issues for appeal. Accordingly, we affirm Servin-Terrasas’
convictions and sentence. We deny counsel’s motion to withdraw.
This court requires that counsel inform his client, in writing, of
his 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

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