United States v. Eduardo Pacheco, 4th Cir. (2013)

Download as pdf
Download as pdf
You are on page 1of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS


FOR THE FOURTH CIRCUIT

No. 12-4903

UNITED STATES OF AMERICA,


Plaintiff - Appellee,
v.
EDUARDO RICO PACHECO, a/k/a Juan Silverio Cruz,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Richard L.
Voorhees, District Judge. (5:11-cr-00071-RLV-DCK-1)

Submitted:

May 30, 2013

Decided:

June 4, 2013

Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior


Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished


per curiam opinion.

D.
Baker
McIntyre,
III,
Charlotte,
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Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Eduardo

Rico

Pacheco

pleaded

guilty

pursuant

to

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)(1) (2006).
court

calculated

Pachecos

Guidelines

range

The district

under

the

U.S.

Sentencing Guidelines Manual (2011) at ten to sixteen months


imprisonment.

The court stated that an upward departure was

warranted in light of Pachecos repeated illegal reentries and


risk of recidivism.
for

departure

was

Neither this ground nor any other ground


mentioned

in

the

presentence

report or prior to the sentencing hearing.


decision

to

depart,

the

court

investigation

After announcing its

sentenced

Pacheco

to

thirty

months imprisonment.
On

appeal,

counsel

has

filed

brief

pursuant

to

Anders v. California, 386 U.S. 738 (1967), certifying that there


are

no

district

meritorious
courts

issues

compliance

for

appeal,

with

but

Federal

questioning

Rule

the

of

Criminal

Procedure 11 and the reasonableness of the sentence.

Pacheco

was advised of his right to file a pro se supplemental brief,


but has not done so.

The Government declined to file a brief.

We affirm Pachecos conviction, vacate his sentence, and remand


for resentencing.

Because Pacheco did not move in the district court to


withdraw his guilty plea, we review the Rule 11 hearing for
plain error.
Cir.

United States v. Martinez, 277 F.3d 517, 525 (4th

2002).

To

prevail

under

this

standard,

Pacheco

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,
voluntary.

ensuring

that

Pachecos

plea

was

knowing

and

We therefore affirm Pachecos conviction.


We

review

Pachecos

abuse-of-discretion standard.
38, 51 (2007).

sentence

under

deferential

Gall v. United States, 552 U.S.

This review requires consideration of both the

procedural and substantive reasonableness of the sentence.

Id.;

United States v. Lynn, 592 F.3d 572, 575 (4th 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) (2006) 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]

into

account

the

totality

of

the

circumstances.

Gall, 552 U.S. at 51; Lynn, 592 F.3d at 575.


We

conclude

that

the

district

court

committed

procedural error in failing to provide notice to the parties


that it was contemplating an upward departure.

Federal Rule of

Criminal Procedure 32(h) requires the district court to provide


reasonable

notice

of

an

intent

to

depart

on

ground

not

previously identified by the presentence investigation report or


one of the parties and to specify the ground of departure.
R. Crim. P. 32(h).

Fed.

Because Pacheco failed to object to the

district courts failure to provide notice, we review the upward


departure for plain error.
725, 732 (1993).
occurred,

was

See United States v. Olano, 507 U.S.

Pacheco must therefore establish that an error


plain,

and

affected

his

substantial

rights.

Massenburg, 564 F.3d at 342-43.


We conclude that an error occurred because the court
denied

the

parties

an

opportunity

to

comment

by

failing

inform them that it was contemplating an upward departure.


error

was

without

also

plain

providing

because

notice

direction of Rule 32(h).


an

increased

Guidelines

sentence,

range,

to

the
the

decision
parties

to

depart

violated

the

to
The

upward
clear

Finally, because the error resulted in


nearly

Pachecos

double

the

substantial

upper

rights

limit
were

of

the

affected.

United States v. Spring, 305 F.3d 276, 282-83 (4th Cir. 2002).
4

Accordingly, we vacate Pachecos sentence and remand for further


proceedings.
In accordance with Anders, we have reviewed the entire
record in this case and have found no other meritorious issues.
We therefore affirm Pachecos conviction, vacate his sentence,
and

remand

for

resentencing

to

allow

the

district

court

to

provide the required notice of its intent to consider an upward


departure.
writing,

of

This court requires that counsel inform Pacheco, in


the

right

to

petition

United States for further review.

the

Supreme

Court

of

the

If Pacheco 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 Pacheco.

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 IN PART,
VACATED IN PART,
AND REMANDED

By this disposition we express no opinion as to


appropriateness of a departure or variance on remand if
required procedures are observed.

the
the

You might also like