Unpublished

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 10-4336
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
ANTONIO MARTINEZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville.
G. Ross Anderson, Jr., Senior
District Judge. (6:09-cr-00163-GRA-5)
Submitted:
January 26, 2011
Decided:
March 10, 2011
Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior

Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jonathan M. Milling, MILLING LAW FIRM, LLC, Columbia, South

Carolina, for Appellant.
Alan Lance Crick, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Antonio Martinez
pled guilty to conspiracy to distribute five kilograms or more
of cocaine, in violation of 21 U.S.C. 846 (2006).
was sentenced to seventy months in prison.
attorney
has
filed
brief
in
Martinez
He now appeals.
accordance
with
His
Anders
v.
California, 386 U.S. 738 (1967), raising four issues but stating
that there are no grounds for appeal.
Martinez was advised of
his right to file a pro se supplemental brief, but has not filed
such a brief.
We affirm.
I
Martinez contends that the district court failed to
comply with Fed. R. Crim. P. 11 and that there was not a factual
basis
for
the
plea.
However,
counsel
in
the
Anders
brief
identifies no flaws in the Rule 11 proceeding, and our review of

the record discloses that the district court fully complied with
Rule 11.
Martinez
Further, sufficient facts supported the guilty plea.

agreed
with
the
governments
summary
of
its
case
against him, which demonstrated his membership in the charged

conspiracy.
Further, Martinez stipulated in his plea agreement
and at the Rule 11 hearing that he was responsible for at least

five, but fewer than fifteen, kilograms of cocaine.
II
Martinez also contends that the district court erred
because it did not specifically address the 18 U.S.C. 3553(a)
(2006)
sentencing
factors
when
imposing
sentence.
Because
Martinez did not raise this claim below, our review is for plain
See United States v. Lynn, 592 F.3d 572, 577 (4th Cir.
error.
2010); see also Fed. R. Crim. P. 52(b); United States v. Olano,

507 U.S. 725, 731-32 (1993) (to constitute plain error, there
must be an error that is plain and that affects the defendants
substantial rights).
We are not required to correct a plain
error unless it seriously affect[s] the fairness, integrity or

Olano, 507 U.S. at
public reputation of judicial proceedings.

732.
In evaluating the sentencing courts explanation of a

selected sentence, we have consistently held that, while the
district court must consider the statutory factors and explain
the
sentence,
it
need
not
explicitly
refer
to
3553(a)
or
discuss every factor on the record, particularly when the court

imposes
sentence
Guidelines range.
within
make
presented.
an
properly
calculated
advisory
See, e.g., United States v. Johnson, 445 F.3d
339, 345 (4th Cir. 2006).

must
the
At the same time, the district court
individualized
assessment
based
on
the
Gall v. United States, 552 U.S. 38, 50 (2007).
facts
The
reasons articulated by the district court for a given sentence

3
need not be couched in the precise language of 3553(a), so

long as the reasons can be matched to a factor appropriate for
consideration under that statute and [are] clearly tied [to the
United States v. Moulden,
defendants] particular situation.

478 F.3d 652, 658 (4th Cir. 2007).
According to the presentence report, Martinezs base

offense level was 32.
See U.S. Sentencing Guidelines Manual
(USSG) 2D1.1(c)(4) (2008).

pursuant
to
USSG
This was reduced by two levels
2D1.1(b)(11).
He
received
adjustment for acceptance of responsibility.

His
total
offense
level
was
27,
and
three-level
See USSG 3E1.1.
his
criminal
history
category was I, resulting in an advisory Guidelines range of 7097
months.
Although
Martinez
was
subject
to
ten-year
statutory mandatory minimum, see 21 U.S.C. 841(b)(1)(A), he

received the benefit of the safety valve provision, 18 U.S.C.
3553(f) (2006), and his Guidelines range applied.
There were no
objections to the presentence report.

At
sentencing,
the
government
recommended
that
Martinez be sentenced to seventy months in prison and advised

the court that Martinez would not challenge the reasonableness
of that sentence pursuant to any of the factors set forth at 18
U.S.C. 3553(a).
The
district
months in prison.
court
sentenced
Martinez
to
seventy
The court stated that it had calculated and

4
considered the advisory guidelines and the relevant statutory

sentencing
factors.
Although
the
court
did
not
make
the
individualized assessment required by case law, we conclude that

this
did
not
constitute
plain
error,
especially
because
the
sentence fell at the low end of the advisory Guidelines range.
III
Counsel
next
contends
that
defense
counsel
was
ineffective. To allow for adequate development of the record, a

defendant
ordinarily
must
raise
claim
of
ineffective
assistance of counsel in a 28 U.S.C.A. 2255 (West Supp. 2010)

motion unless it conclusively appears on the face of the record
that counsel provided inadequate assistance.
Richardson,
195
F.3d
192,
198
(4th
Cir.
United States v.
1999).
Because
ineffective assistance does not conclusively appear on the face

of the record, this claim lacks merit.
IV
In accordance with Anders, we have reviewed the entire
record for meritorious issues and have found none.
We therefore
affirm.
This court requires that counsel inform his client, in
writing,
of
his
right
to
petition
United States for further review.
the
Supreme
Court
of
the
If the client requests that a
petition be filed, but counsel believes that such a petition

5
would be frivolous, then counsel may move in this court for

leave to withdraw from representation.
Counsels motion must
state that a copy was served on the client.

oral
argument
adequately
because
presented
in
the
the
facts
and
materials
We dispense with
legal
before
contentions
the
court
are
and
argument would not aid the decisional process.

AFFIRMED

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

January 26, 2011

March 10, 2011

Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior

Affirmed by unpublished per curiam opinion.

Jonathan M. Milling, MILLING LAW FIRM, LLC, Columbia, South

Unpublished opinions are not binding precedent in this circuit.

Martinez was advised of

identifies no flaws in the Rule 11 proceeding, and our review of

Further, sufficient facts supported the guilty plea.

against him, which demonstrated his membership in the charged

Further, Martinez stipulated in his plea agreement

and at the Rule 11 hearing that he was responsible for at least

2010); see also Fed. R. Crim. P. 52(b); United States v. Olano,

We are not required to correct a plain

error unless it seriously affect[s] the fairness, integrity or

public reputation of judicial proceedings.

In evaluating the sentencing courts explanation of a

discuss every factor on the record, particularly when the court

See, e.g., United States v. Johnson, 445 F.3d

339, 345 (4th Cir. 2006).

At the same time, the district court

Gall v. United States, 552 U.S. 38, 50 (2007).

reasons articulated by the district court for a given sentence

need not be couched in the precise language of 3553(a), so

defendants] particular situation.

According to the presentence report, Martinezs base

See U.S. Sentencing Guidelines Manual

(USSG) 2D1.1(c)(4) (2008).

This was reduced by two levels

adjustment for acceptance of responsibility.

See USSG 3E1.1.

category was I, resulting in an advisory Guidelines range of 7097

statutory mandatory minimum, see 21 U.S.C. 841(b)(1)(A), he

objections to the presentence report.

Martinez be sentenced to seventy months in prison and advised

The court stated that it had calculated and

considered the advisory guidelines and the relevant statutory

individualized assessment required by case law, we conclude that

sentence fell at the low end of the advisory Guidelines range.

ineffective. To allow for adequate development of the record, a

assistance of counsel in a 28 U.S.C.A. 2255 (West Supp. 2010)

ineffective assistance does not conclusively appear on the face

This court requires that counsel inform his client, in

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

Counsels motion must

state that a copy was served on the client.

argument would not aid the decisional process.

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