United States of America v. California, 386 U.S. 738 1967 , asserting, in his opinion, there are no meritorious…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4110
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARLOS CHAVEZ HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:05-cr-00242)
Submitted: September 17, 2007 Decided: October 17, 2007
Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James S. Weidner, Jr., Charlotte, North Carolina, for Appellant.
Edward R. Ryan, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Carlos Chavez Hernandez appeals his sentence to 120
months in prison and five years of supervised release after
pleading guilty to conspiracy to possess with intent to distribute
fifty grams or more of methamphetamine and possessing with intent
to distribute fifty grams or more of methamphetamine in violation
of 21 U.S.C. §§ 841(a)(1), 846 (2000). Hernandez’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
erred in failing to sentence Hernandez below the mandatory minimum
pursuant to 18 U.S.C. § 3553(f) (2000), and whether his sentence is
unreasonably long. Finding no reversible error, we affirm.
We will affirm a sentence imposed by the district court
as long as it is within the statutorily prescribed range and
reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).
A sentence may be unreasonable for both substantive and procedural
reasons. United States v. Moreland, 437 F.3d 424, 434 (4th Cir.),
cert. denied, 126 S. Ct. 2054 (2006). An error of law or fact can
render a sentence unreasonable. United States v. Green, 436 F.3d
449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). We
review a district court’s factual findings for clear error and its
legal conclusions de novo. United States v. Hampton, 441 F.3d 284,

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287 (4th Cir. 2006). Issues raised for the first time on appeal
are reviewed for plain error. Hughes, 401 F.3d at 547.
In sentencing a defendant, the district court must:
(1) properly calculate the guideline range; (2) determine whether
a sentence within that range serves the factors under 18 U.S.C.
§ 3553(a) (2000); (3) implement mandatory statutory limitations;
and (4) explain its reasons for selecting a sentence. Green, 436
F.3d at 455-56. A sentence within a properly calculated advisory
guideline range is presumed to be reasonable. Id. at 457; see Rita
v. United States, 127 S. Ct. 2456 (2007) (upholding presumption of
reasonableness). This presumption can only be rebutted by showing
the sentence is unreasonable when measured against the § 3553(a)
factors. United States v. Montes-Pineda, 445 F.3d 375, 379 (4th
Cir. 2006), cert. denied, 127 S. Ct. 3044 (2007).
The district court determined Hernandez’s base offense
level under U.S. Sentencing Guidelines Manual § 2D1.1(c)(5) (2005)
was thirty and accorded him a three-level reduction for acceptance
of responsibility. With a criminal history category III, his
guideline range was 87 to 108 months in prison. However, as
Hernandez conceded, he was subject to a mandatory minimum sentence
of ten years, see 21 U.S.C. § 841(b)(1)(A)(viii) (2000), and the
district court properly found his advisory guideline sentence was
120 months. Because Hernandez had four criminal history points, he

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did not meet the requirements under 18 U.S.C. § 3553(f)(1), and his
sentence to the mandatory minimum was not unreasonably long.
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.
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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