United States v. Toribio Carbajal-Aguirre, 4th Cir. (2013)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 13-4482
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
TORIBIO CARBAJAL-AGUIRRE, a/k/a Silverio Hernandez-Maya,
a/k/a Toribio Carbajal, a/k/a Silverio Hernandez Maya, a/k/a
Pedro Aguire Benitez,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cr-00035-CCE-1)
Submitted:
November 19, 2013
Before WYNN and

Circuit Judge.
FLOYD,
Circuit
Decided: November 21, 2013
Judges,
and
HAMILTON,
Senior
Affirmed by unpublished per curiam opinion.
Stacey D. Rubain, QUANDER & RUBAIN, P.A., Winston-Salem, North

Carolina, for Appellant.
Kyle David Pousson, OFFICE OF THE
UNITED
STATES
ATTORNEY,
Greensboro,
North
Carolina,
for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Toribio Carbajal-Aguirre pleaded guilty pursuant to a
written plea agreement to illegally reentering the United States
after having been removed based upon a felony conviction, in
violation of 8 U.S.C. 1326(a), (b)(2) (2012), and received a
sentence
of
seventy-five
months
imprisonment.
On
appeal,
counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), certifying that there are no meritorious issues
for appeal, but questioning the district courts compliance with
Federal Rule of Criminal Procedure 11 and the reasonableness of
the sentence.
a
pro
se
Carbajal-Aguirre was advised of his right to file
supplemental
brief,
but
Government declined to file a brief.
has
not
done
so.
The
We affirm.
Because Carbajal-Aguirre did not move in the district

court to withdraw his guilty plea, we review the Rule 11 hearing
for plain error.
(4th
Cir.
2002).
United States v. Martinez, 277 F.3d 517, 525

To
prevail
under
this
standard,
Carbajal-
Aguirre must establish that an error occurred, was plain, and

affected his substantial rights.
United States v. Massenburg,
564 F.3d 337, 342-43 (4th Cir. 2009).
Our review of the record
establishes that the district court substantially complied with

Rule
11s
requirements,
ensuring
was knowing and voluntary.
that
Carbajal-Aguirres
plea
We
review
reasonableness,
standard.
review
Carbajal-Aguirres
under
sentence
deferential
abuse-of-discretion
Gall v. United States, 552 U.S. 38, 41 (2007).
requires
consideration
of
both
the
substantive reasonableness of the sentence.

States
v.
for
Lynn,
592
F.3d
572,
575
(4th
This
procedural
and
Id. at 51; United

Cir.
2010).
After
determining whether the district court correctly calculated the

advisory
Guidelines
range,
we
must
decide
whether
the
court
considered the 18 U.S.C. 3553(a) (2012) factors, analyzed the

arguments presented by the parties, and sufficiently explained
the selected sentence.
Lynn, 592 F.3d at 575-76; United States
v. Carter, 564 F.3d 325, 330 (4th Cir. 2009).

Once we have determined that the sentence is free of
procedural error, we consider the substantive reasonableness of
the
sentence,
tak[ing]
circumstances.
into
account
the
Gall, 552 U.S. at 51.
totality
of
the
If the sentence is
within the appropriate Guidelines range, we presume that the

sentence is reasonable.
261 (4th Cir. 2008).
United States v. Abu Ali, 528 F.3d 210,
Such a presumption is rebutted only if the
defendant demonstrates that the sentence is unreasonable when

measured
against
Montes-Pineda,
the
445
3553(a)
F.3d
375,
factors.
379
quotation marks omitted).
(4th
United
Cir.
2006)
States
v.
(internal
We conclude that the district court committed neither

procedural
nor
substantive
error
in
sentencing.
The
court
correctly calculated and considered as advisory the applicable

Guidelines range.
After hearing argument from defense counsel
for a downward variance and allocution from Carbajal-Aguirre,

the district court explained that the within-Guidelines sentence
was
warranted
convictions.
in
light
of
Carbajal-Aguirres
prior
felony
Counsel does not offer any grounds to rebut the
presumption on appeal that Carbajal-Aguirres within-Guidelines

sentence
none.
is
substantively
reasonable,
and
our
review
reveals
Accordingly, we conclude that the district court did not
abuse its discretion in sentencing Carbajal-Aguirre.

In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal.
sentence.
We therefore affirm Carbajal-Aguirres conviction and

This court requires that counsel inform Carbajal-
Aguirre, in writing, of the right to petition the Supreme Court

of the United States for further review.
If Carbajal-Aguirre
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.
Counsels
motion must state that a copy thereof was served on CarbajalAguirre.

AFFIRMED
4

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

November 19, 2013

Before WYNN and

Decided: November 21, 2013

Affirmed by unpublished per curiam opinion.

Stacey D. Rubain, QUANDER & RUBAIN, P.A., Winston-Salem, North

Unpublished opinions are not binding precedent in this circuit.

counsel has filed a brief pursuant to Anders v. California, 386

Carbajal-Aguirre was advised of his right to file

Government declined to file a brief.

Because Carbajal-Aguirre did not move in the district

United States v. Martinez, 277 F.3d 517, 525

Aguirre must establish that an error occurred, was plain, and

United States v. Massenburg,

564 F.3d 337, 342-43 (4th Cir. 2009).

Our review of the record

establishes that the district court substantially complied with

was knowing and voluntary.

Gall v. United States, 552 U.S. 38, 41 (2007).

substantive reasonableness of the sentence.

Id. at 51; United

determining whether the district court correctly calculated the

considered the 18 U.S.C. 3553(a) (2012) factors, analyzed the

Lynn, 592 F.3d at 575-76; United States

v. Carter, 564 F.3d 325, 330 (4th Cir. 2009).

Gall, 552 U.S. at 51.

within the appropriate Guidelines range, we presume that the

United States v. Abu Ali, 528 F.3d 210,

Such a presumption is rebutted only if the

defendant demonstrates that the sentence is unreasonable when

quotation marks omitted).

We conclude that the district court committed neither

correctly calculated and considered as advisory the applicable

After hearing argument from defense counsel

for a downward variance and allocution from Carbajal-Aguirre,

Counsel does not offer any grounds to rebut the

presumption on appeal that Carbajal-Aguirres within-Guidelines

Accordingly, we conclude that the district court did not

abuse its discretion in sentencing Carbajal-Aguirre.

We therefore affirm Carbajal-Aguirres conviction and

Aguirre, in writing, of the right to petition the Supreme Court

requests that a petition be filed, but counsel believes that

motion must state that a copy thereof was served on CarbajalAguirre.

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