United States of America v. Cesar Alvarez-Valdovinos

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4379
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CESAR ALVAREZ-VALDOVINOS,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:07-cr-00378-NCT-4)
Submitted: June 18, 2010 Decided: July 6, 2010
Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Todd A. Smith, LAW FIRM OF TODD A. SMITH, Graham, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Lisa B. Boggs, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Cesar Alvarez-Valdovinos pled guilty, pursuant to a
written plea agreement, to one count of possession with the
intent to distribute marijuana, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(B) (2006). The district court calculated
Alvarez-Valdovinos’ Guidelines range at 87 to 108 months’
imprisonment, see U.S. Sentencing Guidelines Manual (2007), and
sentenced Alvarez-Valdovinos to 87 months’ imprisonment.
Alvarez-Valdovinos now appeals. 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 questioning
whether the 87-month sentence is reasonable. Alvarez-Valdovinos
has filed a pro se supplemental brief. We affirm.
We review the reasonableness of Alvarez-Valdovinos’
87-month sentence, under an abuse-of-discretion standard.
Gall v. United States, 552 U.S. 38, 41 (2007). In conducting
this review, we “must first ensure that the district court
committed no significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
[18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Id. at 51. “When rendering a
sentence, the district court must make an individualized

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assessment based on the facts presented,” United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation
marks and emphasis omitted), and must “adequately explain the
chosen sentence to allow for meaningful appellate review and to
promote the perception of fair sentencing,” Gall, 552 U.S. at
50. “When imposing a sentence within the Guidelines, however,
the [district court’s] explanation need not be elaborate or
lengthy because [G]uidelines sentences themselves are in many
ways tailored to the individual and reflect approximately two
decades of close attention to federal sentencing policy.”
United States v. Hernandez, 603 F.3d 267, 271 (4th Cir. 2010)
(internal quotation marks omitted).
Once we have determined that the sentence is free of
procedural error, we consider the substantive reasonableness of
the sentence, “tak[ing] into account the totality of the
circumstances.” Gall, 552 U.S. at 51. If the sentence is
within the appropriate Guidelines range, this court applies a
presumption on appeal that the sentence is reasonable. United
States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008).
In this case, the district court correctly calculated
the advisory Guidelines range and heard argument from counsel
and allocution from Alvarez-Valdovinos. Even assuming the court
committed procedural error in failing to provide an
individualized assessment of Alvarez-Valdovinos’ case, we

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conclude that any such omission did not affect Alvarez-
Valdovinos’ substantial rights. See United States v. Lynn, 592
F.3d 572, 580 (4th Cir. 2010). Furthermore, neither counsel nor
Alvarez-Valdovinos offers any grounds to rebut the appellate
presumption of reasonableness afforded the within-Guidelines
sentence. Accordingly, we conclude that the district court did
not abuse its discretion in sentencing Alvarez-Valdovinos.
We have also conducted a careful review of the issues
raised by Alvarez-Valdovinos in his pro se supplemental brief
and conclude that no meritorious issues are presented. Finally,
in accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for review.
Because Alvarez-Valdovinos did not move in the district court to
withdraw his guilty plea, his challenge to the adequacy of the
Fed. R. Crim. P. 11 hearing is reviewed for plain error. See
United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002).
Our review of the transcript of the plea hearing leads us to
conclude that the district court substantially complied with the
mandates of Rule 11 in accepting Alvarez-Valdovinos’ guilty plea
and that the court’s omissions did not affect Alvarez-
Valdovinos’ substantial rights. Critically, the transcript
reveals that the district court ensured the plea was supported
by an independent factual basis and that Alvarez-Valdovinos
entered the plea knowingly and voluntarily with an understanding

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of the consequences. See United States v. DeFusco, 949 F.2d
114, 116, 119-20 (4th Cir. 1991). Accordingly, we discern no
plain error.
We therefore affirm the district court’s judgment and
deny Alvarez-Valdovinos’ motion to withdraw counsel. This court
requires that counsel inform Alvarez-Valdovinos, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Alvarez-Valdovinos 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 Alvarez-Valdovinos.
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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