United States of America v. Francisco Chavez-Nunez, a/k/a Paco

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4509
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FRANCISCO CHAVEZ-NUNEZ, a/k/a Paco,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:07-cr-00014-RLV-CH-1)
Submitted: July 28, 2009 Decided: August 17, 2009
Before WILKINSON, MICHAEL, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Michael McGuinness, THE MCGUINNESS LAW FIRM, Elizabethtown,
North Carolina, for Appellant. Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, Gretchen C.F.
Shappert, United States Attorney, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Francisco Chavez-Nunez appeals his sentence to sixty
months in prison and four years of supervised release after
pleading guilty to conspiracy to possess with intent to
distribute at least 100 kilograms of marijuana in violation of
21 U.S.C. § 846 (2006). Chavez-Nunez’s attorney has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting, in his opinion, there are no meritorious grounds for
appeal but raising the issues of whether the district court
complied with Fed. R. Crim. P. 11 when accepting Chavez-Nunez’s
guilty plea, whether his sentence is reasonable, and whether the
record shows ineffective assistance of counsel. Chavez-Nunez
was notified of his right to file a pro se supplemental brief
but has not done so. Finding no reversible error, we affirm.
Appellate counsel first questions whether the district
court complied with Fed. R. Crim. P. 11 in accepting Chavez-
Nunez’s guilty plea. However, he alleges no error and concludes
that the district court fully complied with the rule and there
was no prejudicial error. Because Chavez-Nunez did not move in
the district court to withdraw his guilty plea, we review this
challenge for plain error. See United States v. Martinez, 277
F.3d 517, 525 (4th Cir. 2002). Thus, it is Chavez-Nunez’s
burden to show (1) error; (2) that is plain; (3) affecting his
substantial rights; and (4) we should exercise our discretion to
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notice the error. Id. at 529. To show his substantial rights
were affected, Chavez-Nunez must demonstrate that absent the
error, he would not have entered his guilty plea. Id. at 532.
We may consider the entire record to determine the effect of any
error. See United States v. Vonn, 535 U.S. 55, 74-75.
We have reviewed the record and find two possible
errors in the plea colloquy conducted by the magistrate judge.
Although the magistrate judge properly informed Chavez-Nunez
that as a result of his plea, he faced a mandatory minimum
prison term of five years, a maximum prison term of forty years,
a fine of up to $2,000,000, and a period of supervised release
following any prison term, he did not specifically inform
Chavez-Nunez of the mandatory minimum four-year supervised
release term or of the district court’s obligation to impose a
special assessment. We conclude, however, that Chavez-Nunez has
not shown any possible error affected his substantial rights.
First, he does not claim he would not have entered his
guilty plea absent the error. Moreover, the presentence report
correctly noted Chavez-Nunez’s supervised release term was at
least four years and that a special assessment of $100 was
mandatory; Chavez-Nunez confirmed at his sentencing hearing that
his attorney had reviewed the presentence report with him and
that he understood the possible penalties of the charge to which
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he was pleading guilty; and the district court at that time
reaffirmed its acceptance of his guilty plea.
Appellate counsel next questions whether Chavez-
Nunez’s sentence is reasonable. He acknowledges the sentence
imposed was within the advisory guideline range and consistent
with the parties’ plea agreement, but he questions whether the
district court complied with United States v. Booker, 543 U.S.
220 (2005), and properly applied the relevant factors under 18
U.S.C. § 3553(a) (2006). We review a sentence for abuse of
discretion. Gall v. United States, 128 S. Ct. 586, 591 (2007).
The first step in this review requires us to ensure that the
district court committed no significant procedural error, such
as improperly calculating the guideline range. United States
v. Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied,
128 S. Ct. 2525 (2008). We then consider the substantive
reasonableness of the sentence imposed, taking into account the
totality of the circumstances. Gall, 128 S. Ct. at 597.
We have reviewed the record and conclude that the
district court did not abuse its discretion in sentencing
Chavez-Nunez, and his sentence is reasonable. Chavez-Nunez was
sentenced to the mandatory minimum sentence under the statute of
five years in prison and four years of supervised release.
Thus, the district court had no discretion to impose a lower
sentence, see United States v. Robinson, 404 F.3d 850, 862 (4th
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Cir. 2005), and Chavez-Nunez’s sentence is per se reasonable.
See United States v. Farrior, 535 F.3d 210, 224 (4th Cir. 2008).
Finally, appellate counsel questions whether Chavez-
Nunez received ineffective assistance of counsel but he states
he cannot find any ineffective assistance appearing on the
record. We may only address a claim of ineffective assistance
on direct appeal if the lawyer’s ineffectiveness conclusively
appears on the record. See United States v. Baldovinos, 434
F.3d 233, 239 (4th Cir. 2006). We find that the record does not
conclusively show ineffective assistance.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
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.
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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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