United States of America v. Librado Pelagio Jacobo

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4231
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LIBRADO PELAGIO JACOBO,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Thomas D. Schroeder,
District Judge. (1:10-cr-00240-TDS-1)
Submitted: September 13, 2011 Decided: September 21, 2011
Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,
Winston-Salem, North Carolina, for Appellant. Clifton Thomas
Barrett, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Librado Pelagio Jacobo appeals the district court’s
judgment entered pursuant to his guilty plea to one count of
possession with intent to distribute 500 grams or more of
cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(B) (2006) (“Count Two”), and to one count of
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (2006)
(“Count Five”). The district court sentenced Jacobo to 108
months’ incarceration on Count Two and 60 months’ imprisonment
on Count Five. On appeal, Jacobo’s counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), in which
he states that he could identify no meritorious issues for
appeal, but questions whether Jacobo’s sentence was reasonable.*
This court reviews a sentence for reasonableness under
a deferential abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). A reasonableness review
includes both procedural and substantive components. Id. A
sentence is procedurally reasonable where the district court
committed no significant procedural errors, such as improperly
calculating the Guidelines range, failing to consider the 18
* Jacobo was advised of his right to file a pro se
supplemental brief but has declined to do so. The Government
has indicated that it will not file a brief in this matter.

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U.S.C. § 3553(a) (2006) factors, or insufficiently explaining
the selected sentence. United States v. Boulware, 604 F.3d 832,
837-38 (4th Cir. 2010). The substantive reasonableness of a
sentence is assessed in light of the totality of the
circumstances. Gall, 552 U.S. at 51. While a sentence may be
substantively unreasonable if the § 3553(a) factors do not
support the sentence, “[r]eviewing courts must be mindful that,
regardless of ‘the individual case,’ the ‘deferential abuse-of-
discretion standard of review . . . applies to all sentencing
decisions.’” United States v. Diosdado-Star, 630 F.3d 359, 366
(4th Cir.), cert. denied, 131 S. Ct. 2946 (2011) (citing Gall,
552 U.S. at 52). Moreover, a sentence that falls within a
properly calculated Guidelines range is presumptively
reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007). Where, as here, an appellant has preserved his challenge
“[b]y drawing arguments from § 3553 for a sentence different
than the one ultimately imposed,” an abuse of the court’s
discretion must be reversed unless it constitutes harmless
error. United States v. Lynn, 592 F.3d 572, 578 (4th Cir.
2010).
At sentencing, Jacobo raised no objections to the
findings or calculations made in the presentence report (the
“PSR”), which established an applicable sentencing range of 108
to 135 months’ imprisonment on Count Two, and a consecutive

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sixty-month sentence on Count Five. Instead, Jacobo raised
before the district court the same argument that he does here;
namely, that Jacobo warranted a sentence below the applicable
guideline range based on his limited education, his clean
criminal record, and his cooperation with authorities.
Our review of the record persuades us that the
district court did not abuse its discretion in declining
Jacobo’s request to depart downward from the guideline range
that he concedes was correctly computed. Indeed, “[a] district
court’s decision not to depart from the Sentencing Guidelines is
not reviewable unless the court mistakenly believed that it
lacked authority to depart.” Allen, 491 F.3d at 193 (quoting
United States v. Carr, 271 F.3d 172, 176 (4th Cir. 2001)). The
record in this case clearly demonstrates that the court
understood its ability to impose a sentence of sixty months, but
that it simply chose not to, based on its assessment of the
factors enumerated in § 3553(a). See United States v. Moulden,
478 F.3d 652, 657 (4th Cir. 2007). We therefore conclude that
the district court’s decision to impose a within-Guidelines
sentence on Jacobo was a proper exercise of its prerogative.
See Allen, 491 F.3d at 193.
In accordance with Anders, we have reviewed the entire
record in this case, including the guilty plea hearing, and have
found no meritorious issues for appeal. We therefore affirm the

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district court’s judgment. This court requires that counsel
inform Jacobo, in writing, of the right to petition the Supreme
Court of the United States for further review. If Jacobo
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 Jacobo.
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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