United States of America v. Bruno Iniguez-Villavicencio, a/k/a Jose Cruz

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5060
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRUNO INIGUEZ-VILLAVICENCIO, a/k/a Jose Cruz,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-03-48)
Submitted: January 24, 2007 Decided: February 20, 2007
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marilyn G. Ozer, MASSENGALE & OZER, Chapel Hill, North Carolina,
for Appellant. Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina; Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Bruno Iniguez-Villavicencio appeals from his conviction
pursuant to a guilty plea to conspiracy to possess with intent to
distribute cocaine, methamphetamine, and marijuana, and from the
120-month sentence imposed. He argues that the district court
failed to establish an adequate factual basis to support his guilty
plea and erred in determining his criminal history score, and that
his attorney provided ineffective assistance in advising him to
plead guilty and at sentencing. We affirm Iniguez-Villavicencio’s
conviction and sentence.
Iniguez-Villavicencio first argues that the district
court failed to establish an adequate factual basis to support the
guilty plea as required by Fed. R. Crim. P. 11(b)(3). The finding
of a factual basis may be based on “anything that appears in the
record.” United States v. DeFusco, 949 F.2d 114, 120 (4th Cir.
1991). We find that the record contains sufficient factual support
for Iniguez-Villavicencio’s plea. He admitted that he knew of the
organization of persons involved in illegal activities and he was
involved in this organization. Iniguez-Villavicencio admitted that
he received compensation in exchange for his participation in the
organization. He also admitted that he participated in the
conspiracy by purchasing vehicles with cash that he believed
constituted proceeds of drug transactions. Moreover, in the plea
agreement, Iniguez-Villavicencio stipulated that he was aware of or

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could reasonably foresee that the organization distributed between
3.5 and 5 kilograms of cocaine and between 1000 and 3000 kilograms
of marijuana. These admissions and stipulations provided a
sufficient basis for the district court to find that there was an
agreement between two or more persons to possess drugs with the
intent to distribute, that Iniguez-Villavicencio knew of the
agreement, and that he willingly and knowingly joined in the
agreement. See United States v. Burgos, 94 F.3d 849, 857 (4th Cir.
1996) (providing elements of a conspiracy); DeFusco, 949 F.2d at
120 (stating that factual basis can be based on anything in the
record). We find no abuse of discretion by the district court in
determining the existence of an adequate factual basis. See United
States v. Carr, 271 F.3d 172, 179 (4th Cir. 2001).
Next, Iniguez-Villavicencio contends that the district
court erred in finding that his prior conviction for offensive
words in a public place and his resulting probationary sentence
precluded the application of the safety valve reduction. At the
time Iniguez-Villavicencio committed the instant offense, he was
serving a three-year term of summary probation imposed following
his conviction in California of the misdemeanor offense of using
offensive words in a public place. One criminal history point was
assessed because of the conviction, and two points were added
because the instant offense was committed while
Iniguez-Villavicencio was on probation.

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Iniguez-Villavicencio challenges the validity of the
California conviction, the propriety of assessing the attendant
criminal history points, and the court’s failure under United
States v. Booker, 543 U.S. 220 (2005), to impose a sentence lower
than the statutory mandatory minimum. We find no plain error by
the district court in computing Iniguez-Villavicencio’s criminal
history category. See United States v. Ford, 88 F.3d 1350, 1355
(4th Cir. 1996) (providing standard). Accordingly, we affirm
Iniguez-Villavicencio’s 120-month sentence. Concerning Iniguez-
Villavicencio’s challenge to the district court’s decision not to
sentence him below the statutory mandatory minimum sentence in
light of Booker, we note that the decision in Booker to make the
guidelines advisory did not alter the mandatory nature of
statutorily required minimum sentences. See United States v.
Green, 436 F.3d 449, 455-56 (4th Cir.), cert. denied, 126 S. Ct.
2309 (2006); United States v. Robinson, 404 F.3d 850, 862 (4th
Cir.), cert. denied, 126 S. Ct. 288 (2005).
Lastly, Iniguez-Villavicencio argues that his attorney
was ineffective in advising him to plead guilty without having
investigated his criminal history. Claims of ineffective
assistance of trial counsel are not cognizable on direct appeal
unless such ineffectiveness conclusively appears from the record.
United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999);
United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Rather,

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such claims should be raised, if at all, in a proceeding under 28
U.S.C. § 2255 (2000). Because the record does not conclusively
establish that counsel provided ineffective assistance, we decline
to consider the merits of this issue on direct appeal.
In conclusion, we affirm Iniguez-Villavicencio’s
conviction and sentence. 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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