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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4585
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NESTOR IVAN DUARTE, a/k/a Josue Cruz Estrada,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:14-cr-00107-JAB-1)
Submitted:
May 31, 2016
Before NIEMEYER
Circuit Judge.
and
AGEE,
Decided:
Circuit
Judges,
and
June 10, 2016
DAVIS,
Senior
Affirmed by unpublished per curiam opinion.
James E. Quander, Jr., Winston-Salem, North Carolina, for
Appellant.
Graham Tod Green, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nestor Ivan Duarte appeals his conviction and sentence for
two counts of obstructing commerce by robbery, in violation of
18 U.S.C. 2, 1951(a) (2012).
a
written
plea
imprisonment
counsel
for
and
agreement
3
Duarte
Duarte pled guilty pursuant to
years
and
filed
of
was
sentenced
supervised
a
brief
to
312
months
release.
On
appeal,
pursuant
to
Anders
v.
California, 386 U.S. 738 (1967), asserting that there are no
meritorious issues for appeal but seeking review of the adequacy
of the district courts Fed. R. Crim. P. 11 plea colloquy and
the reasonableness of Duartes sentence.
Duarte did not file a
supplemental pro se brief, despite receiving notice of his right
to do so.
The Government elected not to file a response to the
Anders brief.
We affirm the district courts judgment.
Prior to accepting a guilty plea, a trial court, through
colloquy with the defendant, must inform the defendant of, and
determine that he understands, the nature of the charge to which
the plea is offered, the penalties he faces, and the various
Counsel asserts that the district courts plea colloquy
insufficiently addressed the appellate waiver contained in
Duartes plea agreement.
The Government has not sought to
enforce the waiver in this case; accordingly, we conduct a full
review of the record as required by Anders.
See United States
v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (If an Anders
brief is filed, the government is free to file a responsive
brief raising the waiver issue (if applicable) or do nothing,
allowing this court to perform the required Anders review.).
rights he is relinquishing by pleading guilty.
Fed. R. Crim. P.
11(b)(1); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir.
1991).
The district court also must ensure that the defendants
plea was voluntary, was supported by a sufficient factual basis,
and
did
not
result
from
force,
threats,
contained in the plea agreement.
(3); DeFusco, 949 F.2d at 119-20.
or
promises
not
Fed. R. Crim. P. 11(b)(2),
In reviewing the adequacy of
compliance with Rule 11, [we] should accord deference to the
trial courts decision as to how best to conduct the mandated
colloquy with the defendant.
DeFusco, 949 F.2d at 116.
Because Duarte did not move to withdraw his guilty plea in
the district court or otherwise preserve any allegation of Rule
11 error, we review the plea colloquy for plain error.
States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014).
United
To prevail
on a claim of plain error, [Duarte] must demonstrate not only
that the district court plainly erred, but also that this error
affected his substantial rights.
plea
context,
defendant
Id. at 816.
must
In the guilty
demonstrate
reasonable
probability that, but for the error, he would not have pleaded
guilty.
Id. (internal quotation marks omitted).
will
correct
not
any
error
unless
we
are
Further, we
convinced
that
refusal to do so would seriously affect the fairness, integrity
or public reputation of judicial proceedings.
quotation
marks
omitted).
We
3
conclude
that
Id. (internal
Duarte
has
not
established plain error in his Rule 11 hearing.
The district
court correctly found Duartes plea knowing and voluntary.
Turning
to
Duartes
sentence,
procedural
and
substantive
deferential
abuse-of-discretion
court
did
not
review
reasonableness,
standard.
States, 552 U.S. 38, 51 (2007).
district
we
sentence
for
applying
Gall
v.
United
We must first ensure that the
commit
any
significant
procedural
error, such as failing to properly calculate the applicable
Sentencing Guidelines range, failing to consider the 18 U.S.C.
3553(a) (2012) sentencing factors, or failing to adequately
explain the sentence.
reasonable,
Id.
we
Id.
then
If we find the sentence procedurally
consider
its
substantive
reasonableness.
We presume on appeal that a sentence within the properly
calculated Guidelines range is substantively reasonable.
States
v.
Strieper,
666
F.3d
288,
295
(4th
Cir.
United
2012);
see
United States v. Aplicano-Oyuela, 792 F.3d 416, 425 (4th Cir.
2015)
(applying
presumption
to
term
of
supervised
release).
Such a presumption can only be rebutted by showing that the
sentence
is
unreasonable
3553(a) factors.
when
measured
against
the
. . .
United States v. Louthian, 756 F.3d 295,
306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014).
Upon
sentencing
review,
error
we
by
discern
the
no
district
procedural
court.
The
or
substantive
district
court
correctly calculated Duartes offense level, criminal history,
4
and advisory Guidelines range.
an
adequate
appropriate
opportunity
sentence
allocute.
and
Finally,
individualized
to
The court afforded the parties
present
provided
the
explanation
arguments
Duarte
court
of
the
an
concerning
the
opportunity
to
provided
an
adequate,
within-Guidelines
sentence.
Nothing in the record rebuts the presumption that the sentence
is substantively reasonable.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal.
therefore
affirm
the
district
courts
judgment.
This
We
court
requires that counsel inform Duarte, in writing, of the right to
petition
the
Supreme
review.
If
Duarte
Court
of
requests
the
that
United
a
States
petition
be
for
further
filed,
but
counsel believes that such a petition would be frivolous, then
counsel
may
move
representation.
in
this
court
for
leave
to
withdraw
from
Counsels motion must state that a copy thereof
was served on Duarte.
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
the
decisional process.
AFFIRMED
