Unpublished

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 07-4703
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
RAUL ALFREDO ESPINOSA,
Defendant Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Sr.,
Senior District Judge. (1:06-cr-00359)
Submitted:
September 30, 2008
Decided:
December 16, 2008
Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John J. Korzen, WAKE FOREST UNIVERSITY SCHOOL OF LAW, WinstonSalem, North Carolina, for Appellant.
Anna Mills Wagoner,
United States Attorney, L. Patrick Auld, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raul
sentence
after
Espinosa
he
pled
appeals
guilty
his
to
conviction
possession
and
with
262-month
intent
to
distribute twenty-five kilograms of cocaine, in violation of 21

U.S.C. 841(a)(1) (2000).
Espinosas counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating

that there are no meritorious issues for appeal but questioning
whether the district court erred by denying Espinosas motion to
withdraw his guilty plea and whether the sentence is reasonable.
Espinosa was informed of his right to file a pro se supplemental
brief but has not done so.
Finding no reversible error, we
affirm.
Counsel first challenges the district courts denial
of Espinosas motion to withdraw his guilty plea, contending
that
Espinosa
did
not
enter
his
guilty
plea
knowingly
and
voluntarily because he relied on improper advice from counsel

based
on
search.
the
evidence
Counsel
also
obtained
argues
during
that,
in
search, Espinosa is legally innocent.

that
the
assistant
federal
public
an
allegedly
light
of
the
illegal
illegal
Next, counsel contends
defender
who
represented
Espinosa
during
the
plea
proceedings
provided
ineffective
assistance by failing to file a motion to suppress.

Withdrawal of a guilty plea is not a matter of right.
United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).
The
defendant
bears
the
burden
of
showing
reason for the withdrawal of his guilty plea.

11(d)(2)(B).
essentially
fair
and
just
Fed. R. Crim. P.
[A] fair and just reason . . . is one that

challenges
proceeding . . . .
. . .
the
fairness
of
the
Rule
11
United States v. Lambey, 974 F.2d 1389,
1394 (4th Cir. 1992) (en banc).
An appropriately conducted Rule
11 proceeding, however, raise[s] a strong presumption that the

plea is final and binding.
Id. at 1394.
Here, the district court applied the factors courts

must consider in determining whether to permit withdrawal of a
guilty plea.
See Ubakanma, 215 F.3d at 424.
Our review of the
record convinces us that the district court did not abuse its
discretion in denying Espinosas motion to withdraw.
United
To the extent that Espinosa raises an ineffective

assistance of counsel claim unrelated to the withdrawal of his
guilty plea, such claim should be raised in a motion under 28
U.S.C.A. 2255 (West Supp. 2008), and not on direct appeal,
unless
the
record
conclusively
shows
that
counsel
was
ineffective.
United States v. Baldovinos, 434 F.3d 233, 239
(4th Cir. 2006).
Here, the record does not demonstrate
conclusively counsels ineffectiveness.
States v.
Dyess,
478
standard of review).
Counsel
F.3d
224,
237
(4th
Cir.
2007)
(stating
We therefore affirm the conviction.
also
sentence is reasonable.
questions
whether
Espinosas
262-month
This court reviews the sentence imposed
by the district court for abuse of discretion.

States, 128 S. Ct. 586, 597 (2007).
Gall v. United
If the appellate court
concludes that the sentence is procedurally sound, the court

then considers the substantive reasonableness of the sentence.
Id.
This court presumes that a sentence imposed within the
properly
calculated
guidelines
range
is
reasonable.
United
States v. Go, 517 F.3d 216, 218 (4th Cir. 2008); see Rita v.
United
States,
127
S.
Ct.
2456,
2462-69
(2007)
(upholding
presumption of reasonableness for withinGuidelines sentence).

In light of Gall, we find that Espinosas sentence is
reasonable.
error,
First, the district court committed no procedural
appropriately
treating
the
guidelines
as
advisory
and
considering the guidelines range and the factors in 18 U.S.C.A.

3553(a) (West 2000 & Supp. 2008), before imposing a 262-month
prison term, a sentence at the bottom of the guidelines range.
Applying
the
presumption
Espinosa
has
failed
to
of
rebut
reasonableness
the
and
presumption
finding
on
conclude that his 262-month sentence is reasonable.

F.3d at 218; see also Rita, 127 S. Ct. at 2462-69.
that
appeal,
we
See Go, 517
In accordance with Anders, we have reviewed the record

for
any
Thus,
meritorious
we
requires
affirm
that
issues
the
for
district
counsel
inform
appeal
courts
his
and
have
judgment.
client,
in
found
none.
This
court
writing,
of
his
right to petition the Supreme Court of the United States for

further
filed,
review.
but
If
counsel
the
client
believes
requests
that
such
that
a
petition
petition
would
be
be
frivolous, then counsel may move in this court for leave to

withdraw from representation.
Counsels 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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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

September 30, 2008

December 16, 2008

Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

distribute twenty-five kilograms of cocaine, in violation of 21

Espinosas counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating

Finding no reversible error, we

voluntarily because he relied on improper advice from counsel

search, Espinosa is legally innocent.

Next, counsel contends

assistance by failing to file a motion to suppress.

reason for the withdrawal of his guilty plea.

[A] fair and just reason . . . is one that

United States v. Lambey, 974 F.2d 1389,

1394 (4th Cir. 1992) (en banc).

An appropriately conducted Rule

11 proceeding, however, raise[s] a strong presumption that the

Here, the district court applied the factors courts

See Ubakanma, 215 F.3d at 424.

Our review of the

To the extent that Espinosa raises an ineffective

We therefore affirm the conviction.

This court reviews the sentence imposed

by the district court for abuse of discretion.

If the appellate court

concludes that the sentence is procedurally sound, the court

This court presumes that a sentence imposed within the

presumption of reasonableness for withinGuidelines sentence).

First, the district court committed no procedural

considering the guidelines range and the factors in 18 U.S.C.A.

conclude that his 262-month sentence is reasonable.

See Go, 517

In accordance with Anders, we have reviewed the record

right to petition the Supreme Court of the United States for

frivolous, then counsel may move in this court for leave to

Counsels 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

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