United States of America v. Arturo Morales Pena

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4736
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARTURO MORALES PENA,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, District Judge. (1:17-cr-00082-CCE-1)
Submitted: April 17, 2018 Decided: April 19, 2018
Before WILKINSON and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
James B. Craven III, Durham, North Carolina, for Appellant. Randall Stuart Galyon,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Arturo Morales Pena pled guilty, pursuant to a written plea agreement, to
conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(C),
846 (2012). The district court sentenced Morales Pena to 180 months’ imprisonment, a
downward variance from his 235- to 240-month advisory Sentencing Guidelines range.
On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that there are no meritorious grounds for appeal, but questioning the
reasonableness of Morales Pena’s sentence and whether he was denied effective
assistance of counsel in the district court. Morales Pena filed a pro se supplemental brief
alleging ineffective assistance of counsel. The Government declined to file a brief.
Turning first to Morales Pena’s sentencing challenge, we review a sentence for
procedural and substantive reasonableness under a deferential abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). We must first ensure that the
district court did not commit any “significant procedural error,” such as failing to
properly calculate the applicable Guidelines range, failing to consider the 18 U.S.C.
§ 3553(a) (2012) sentencing factors, or failing to adequately explain the sentence. Id. If
we find the sentence procedurally reasonable, we then consider its substantive
reasonableness. Id. at 328. We presume on appeal that a sentence within or below the
properly calculated Guidelines range is substantively reasonable. United States v.
Louthian, 756 F.3d 295, 306 (4th Cir. 2014). Such a presumption is rebutted only when
the defendant shows “that the sentence is unreasonable when measured against the
§ 3553(a) factors.” United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006).

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Morales Pena claims that his sentence is unreasonable because he was promised a
term of no more than 10 years’ imprisonment. We find this claim to be unsupported by
the record. Morales Pena’s plea agreement contained no such promise and he stated
under oath at the plea hearing that his guilty plea was not based on promises outside of
the plea agreement.* The district court correctly calculated Morales Pena’s advisory
Guidelines range, heard argument from counsel, provided Morales Pena an opportunity to
allocute, and considered the § 3553(a) sentencing factors. We have reviewed the record
and conclude that Morales Pena’s below-Guidelines sentence is both procedurally and
substantively reasonable.
Next, Morales Pena claims that trial counsel was ineffective for failing to tell him
that he could face a two-level adjustment in offense level for his role in the offense,
pursuant to U.S. Sentencing Guidelines Manual § 3B1.1(c) (2016). He also asserts
additional claims of ineffective assistance of counsel in his pro se supplement brief.
Unless an attorney’s ineffectiveness conclusively appears on the face of the record, such
claims are not generally addressed on direct appeal. United States v. Benton, 523 F.3d
424, 435 (4th Cir. 2008). Instead, such claims should be raised in a motion brought
pursuant to 28 U.S.C. § 2255 (2012), in order to permit sufficient development of the
record. United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). Because the
* The district court fully complied with Fed. R. Crim. P. 11 in accepting Morales
Pena’s guilty plea.

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record does not conclusively establish ineffective assistance of counsel, we conclude that
Morales Pena’s claims should be raised, if at all, in a § 2255 motion.
We therefore affirm the judgment of the district court. In accordance with Anders,
we have reviewed the record in this case and have found no meritorious issues for appeal.
We deny counsel’s motion to withdraw. This court requires that counsel inform Morales
Pena, in writing, of the right to petition the Supreme Court of the United States for further
review. If Morales Pena 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
Morales Pena.
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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