United States of America v. Mario Oliver Perez-Sanchez, a/k/a Catfish

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4037
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARIO OLIVER PEREZ-SANCHEZ, a/k/a Catfish,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:13-cr-00077-MR-DLH-3)
Submitted: September 16, 2015 Decided: October 6, 2015
Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles R. Brewer, Asheville, North Carolina, for Appellant. Amy
Elizabeth 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Unpublished opinions are not binding precedent in this circuit.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:
Mario Oliver Perez-Sanchez pleaded guilty to conspiracy to
possess with intent to distribute and distribute
methamphetamine, in violation of 21 U.S.C. § 846 (2012). The
district court sentenced Perez-Sanchez to 151 months of
imprisonment and he now appeals. Appellate counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
questioning whether trial counsel rendered ineffective
assistance and whether the sentence is procedurally and
substantively reasonable. Perez-Sanchez filed a pro se
supplemental brief raising additional issues.* Finding no error,
we affirm.
Appellate counsel first questions whether trial counsel
rendered ineffective assistance. To prove a claim of
ineffective assistance of counsel, a defendant must show
(1) “that counsel’s performance was deficient,” and (2) “that
the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the
second prong of the test in the context of a conviction
following a guilty plea, a defendant can show prejudice only by
demonstrating “a reasonable probability that, but for counsel’s
* We have reviewed the issues raised in Perez-Sanchez’s pro
se supplemental brief and conclude they lack merit.

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errors, he would not have pleaded guilty and would have insisted
on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Moreover, we may address a claim of ineffective assistance
on direct appeal only if the lawyer’s ineffectiveness
conclusively appears on the record. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). We have
thoroughly reviewed the record and conclude that ineffective
assistance does not conclusively appear on the record. We
therefore decline to address this claim on direct appeal.
Counsel next questions whether the district court erred in
applying an enhancement for a leadership role in the conspiracy
under the Sentencing Guidelines. Counsel further questions
whether the sentence is substantively reasonable. We review a
sentence for reasonableness, applying an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007); see
also United States v. Lymas, 781 F.3d 106, 111 (4th Cir. 2015).
In so doing, we first examine the sentence for any procedural
error, Lymas, 781 F.3d at 111-12, and then consider the
substantive reasonableness of the sentence; if the sentence is
within the Guidelines range, we apply a presumption of
reasonableness. See Rita v. United States, 551 U.S. 338, 346-59
(2007) (upholding presumption of reasonableness for within
Guidelines sentence).

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In addition, in reviewing the district court’s calculations
under the Guidelines, “we review the district court’s legal
conclusions de novo and its factual findings for clear error.”
United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010)
(internal quotation marks omitted). We will “find clear error
only if, on the entire evidence, we are left with the definite
and firm conviction that a mistake has been committed.” Id. at
631 (internal quotation marks omitted).
Under the Guidelines, a four-level enhancement applies to
the offense level if the defendant was an organizer or leader of
a criminal organization that involved five or more participants,
or was otherwise extensive. U.S. Sentencing Guidelines Manual
§ 3B1.1(a); see also United States v. Cameron, 573 F.3d 179, 184
(4th Cir. 2009). The district court must find the enhancement
applicable by a preponderance of the evidence. United States v.
Grubbs, 585 F.3d 793, 803 (4th Cir. 2009). We conclude that the
district court correctly calculated the advisory Guidelines
range. In addition, Perez-Sanchez has failed to overcome the
presumption of reasonableness applied to his within-Guidelines
sentence.
We have examined the entire record in accordance with the
requirements of Anders and have found no meritorious issues for
appeal. Accordingly, we affirm the judgment of the district
court. This court requires that counsel inform Perez-Sanchez,

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in writing, of the right to petition the Supreme Court of the
United States for further review. If Perez-Sanchez 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 Perez-Sanchez. 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 in the decisional process.
AFFIRMED

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