United States of America v. Nestor Ivan Duarte, a/k/a Josue Cruz Estrada

UNPUBLISHED
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 Decided: June 10, 2016
Before NIEMEYER and AGEE, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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). Duarte pled guilty pursuant to
a written plea agreement and was sentenced to 312 months’
imprisonment and 3 years of supervised release. On appeal,
counsel for Duarte filed a brief 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 court’s Fed. R. Crim. P. 11 plea colloquy∗ and
the reasonableness of Duarte’s 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 court’s 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 court’s plea colloquy
insufficiently addressed the appellate waiver contained in
Duarte’s 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.”).

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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 defendant’s
plea was voluntary, was supported by a sufficient factual basis,
and did not result from force, threats, or promises not
contained in the plea agreement. Fed. R. Crim. P. 11(b)(2),
(3); DeFusco, 949 F.2d at 119-20. “In reviewing the adequacy of
compliance with Rule 11, [we] should accord deference to the
trial court’s 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. United
States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014). “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.” Id. at 816. In the guilty
plea context, a defendant “must demonstrate a reasonable
probability that, but for the error, he would not have pleaded
guilty.” Id. (internal quotation marks omitted). “Further, we
will not correct any error unless we are convinced that a
refusal to do so would seriously affect the fairness, integrity
or public reputation of judicial proceedings.” Id. (internal
quotation marks omitted). We conclude that Duarte has not

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established plain error in his Rule 11 hearing. The district
court correctly found Duarte’s plea knowing and voluntary.
Turning to Duarte’s sentence, we review a sentence for
procedural and substantive reasonableness, applying “a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 51 (2007). We must first ensure that the
district court did not 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. Id. If we find the sentence procedurally
reasonable, we then consider its substantive reasonableness.
Id. We presume on appeal that a sentence within the properly
calculated Guidelines range is substantively reasonable. United
States v. Strieper, 666 F.3d 288, 295 (4th Cir. 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 when measured against the . . .
§ 3553(a) factors.” United States v. Louthian, 756 F.3d 295,
306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014).
Upon review, we discern no procedural or substantive
sentencing error by the district court. The district court
correctly calculated Duarte’s offense level, criminal history,

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and advisory Guidelines range. The court afforded the parties
an adequate opportunity to present arguments concerning the
appropriate sentence and provided Duarte an opportunity to
allocute. Finally, the court provided an adequate,
individualized explanation of the 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. We
therefore affirm the district court’s judgment. This court
requires that counsel inform Duarte, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Duarte 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. Counsel’s 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

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