USCA4 Appeal: 23-4469 Doc: 32 Filed: 03/28/2025 Pg: 1 of 6
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-4469
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EFRAIN LOPEZ-PEREZ, a/k/a Hector Terronez-Gomez,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:20-cr-00477-FL-1)
Submitted: February 19, 2025 Decided: March 28, 2025
Before KING and QUATTLEBAUM, Circuit Judges, and KEENAN, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Helen Celeste Smith, Apex, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, Kimberly N. Dixon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-4469 Doc: 32 Filed: 03/28/2025 Pg: 2 of 6
PER CURIAM:
Efrain Lopez-Perez appeals the 60-month sentence imposed after he pleaded guilty
to illegal reentry of an aggravated felon, in violation of 8 U.S.C. § 1326(a), (b)(2). He
contends that the magistrate judge violated Fed. R. Crim. P. 11(b)(1)(B) by failing to advise
him of his right to plead not guilty. He also claims that the district court ignored his
nonfrivolous arguments for a lower sentence. Finally, he asserts that his sentence is
substantively unreasonable. We affirm.
Before accepting a guilty plea, the district court must conduct a colloquy in which
it informs the defendant of, and determines that he understands, the nature of the charges
to which he is pleading guilty, any mandatory minimum penalty, the maximum penalty he
faces, and the 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). Among those rights is “the
right to plead not guilty, or having already so pleaded, to persist in that plea.” Fed. R.
Crim. P. 11(b)(1)(B).
Because Lopez-Perez did not preserve any error in the plea proceedings, we review
the adequacy of the plea colloquy only for plain error. United States v. King, 91 F.4th 756,
760 (4th Cir. 2024). To prevail under this standard, Lopez-Perez must demonstrate “that
(1) there is error; (2) the error is plain; and (3) the error affects his substantial rights.” Id.
(cleaned up). “[T]o establish an effect on his substantial rights in this context, [Lopez-
Perez] bears the burden of establishing a reasonable probability that, but for the error, he
would not have entered the plea.” United States v. Kemp, 88 F.4th 539, 545 (4th Cir. 2023)
(internal quotation marks omitted). “In evaluating whether Rule 11 omissions affected a
2 USCA4 Appeal: 23-4469 Doc: 32 Filed: 03/28/2025 Pg: 3 of 6
defendant’s substantial rights, we consider whether the defendant had independent notice
of the omitted information, as from a plea agreement.” Id.
Lopez-Perez is correct that, at the Rule 11 hearing, the magistrate judge did not
expressly advise him of the right to plead not guilty. However, Lopez-Perez was advised
at his arraignment that, at a later date, he would have the option of pleading guilty or not
guilty. And throughout the Rule 11 hearing, the magistrate judge obliquely referenced
Lopez-Perez’s right to plead not guilty, telling Lopez-Perez that he had the right to a jury
trial, discussing what would happen “if” he pleaded guilty, and explaining that the court
would hold a trial scheduling conference if a not guilty plea were entered. Based on these
exchanges, and because Lopez-Perez does not identify any part of the record suggesting
that he would have proceeded to trial had he been explicitly informed of his right to plead
not guilty, we are satisfied that the magistrate judge’s Rule 11 omission did not affect
Lopez-Perez’s substantial rights.
Turning to Lopez-Perez’s sentencing claims, we review a defendant’s sentence for
procedural and substantive reasonableness, applying a deferential “abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 51 (2007). In evaluating procedural
reasonableness, we consider whether the district court adequately explained the
defendant’s sentence. United States v. Blue, 877 F.3d 513, 518 (4th Cir. 2017). “Where a
defendant (or prosecutor) presents nonfrivolous reasons for imposing a sentence outside
the Guidelines, the sentencing judge must address or consider those arguments and explain
why he has rejected them.” United States v. Powers, 40 F.4th 129, 137 (4th Cir. 2022)
3 USCA4 Appeal: 23-4469 Doc: 32 Filed: 03/28/2025 Pg: 4 of 6
(internal quotation marks omitted). As long as the “district court addresses [the]
defendant’s ‘central thesis,’” an exhaustive explanation is not required. Id.
After unlawfully reentering the United States, Lopez-Perez was charged with—and
eventually pleaded guilty to—several North Carolina crimes, including kidnapping and
assault inflicting serious injury. He spent two years in North Carolina custody before being
transferred to federal custody in connection with the illegal reentry charge.
At sentencing, Lopez-Perez asked the district court to consider that the Bureau of
Prisons would not credit against his federal sentence the time he had spent in state custody.
According to Lopez-Perez, the court neglected to address this argument, which was
premised on U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n.7 (2021). Application
Note 7 provides that a district court may consider a downward departure for an unlawful
reentry defendant who has served time in state custody that will not be credited to his
federal sentence. USSG § 2L1.2 cmt. n.7. However, “[s]uch a departure should be
considered only in cases where the departure is not likely to increase the risk to the public
from further crimes of the defendant.” Id. Relevant factors include “whether the defendant
engaged in additional criminal activity after illegally reentering the United States,” “the
seriousness of any such additional criminal activity,” and “the seriousness of the
defendant’s other criminal history.” Id.
Here, a downward departure under Application Note 7 was clearly unwarranted in
light of the extremely serious and violent crimes that Lopez-Perez committed upon
reentering the United States, as well as his substantial criminal history. We therefore
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conclude that Lopez-Perez’s argument was frivolous, such that the district court did not
abuse its discretion by declining to address it directly.
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USCA4 Appeal: 23-4469 Doc: 32 Filed: 03/28/2025 Pg: 1 of 6
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-4469
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EFRAIN LOPEZ-PEREZ, a/k/a Hector Terronez-Gomez,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:20-cr-00477-FL-1)
Submitted: February 19, 2025 Decided: March 28, 2025
Before KING and QUATTLEBAUM, Circuit Judges, and KEENAN, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Helen Celeste Smith, Apex, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, Kimberly N. Dixon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-4469 Doc: 32 Filed: 03/28/2025 Pg: 2 of 6
PER CURIAM:
Efrain Lopez-Perez appeals the 60-month sentence imposed after he pleaded guilty
to illegal reentry of an aggravated felon, in violation of 8 U.S.C. § 1326(a), (b)(2). He
contends that the magistrate judge violated Fed. R. Crim. P. 11(b)(1)(B) by failing to advise
him of his right to plead not guilty. He also claims that the district court ignored his
nonfrivolous arguments for a lower sentence. Finally, he asserts that his sentence is
substantively unreasonable. We affirm.
Before accepting a guilty plea, the district court must conduct a colloquy in which
it informs the defendant of, and determines that he understands, the nature of the charges
to which he is pleading guilty, any mandatory minimum penalty, the maximum penalty he
faces, and the 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). Among those rights is “the
right to plead not guilty, or having already so pleaded, to persist in that plea.” Fed. R.
Crim. P. 11(b)(1)(B).
Because Lopez-Perez did not preserve any error in the plea proceedings, we review
the adequacy of the plea colloquy only for plain error. United States v. King, 91 F.4th 756,
760 (4th Cir. 2024). To prevail under this standard, Lopez-Perez must demonstrate “that
(1) there is error; (2) the error is plain; and (3) the error affects his substantial rights.” Id.
(cleaned up). “[T]o establish an effect on his substantial rights in this context, [Lopez-
Perez] bears the burden of establishing a reasonable probability that, but for the error, he
would not have entered the plea.” United States v. Kemp, 88 F.4th 539, 545 (4th Cir. 2023)
(internal quotation marks omitted). “In evaluating whether Rule 11 omissions affected a
2 USCA4 Appeal: 23-4469 Doc: 32 Filed: 03/28/2025 Pg: 3 of 6
defendant’s substantial rights, we consider whether the defendant had independent notice
of the omitted information, as from a plea agreement.” Id.
Lopez-Perez is correct that, at the Rule 11 hearing, the magistrate judge did not
expressly advise him of the right to plead not guilty. However, Lopez-Perez was advised
at his arraignment that, at a later date, he would have the option of pleading guilty or not
guilty. And throughout the Rule 11 hearing, the magistrate judge obliquely referenced
Lopez-Perez’s right to plead not guilty, telling Lopez-Perez that he had the right to a jury
trial, discussing what would happen “if” he pleaded guilty, and explaining that the court
would hold a trial scheduling conference if a not guilty plea were entered. Based on these
exchanges, and because Lopez-Perez does not identify any part of the record suggesting
that he would have proceeded to trial had he been explicitly informed of his right to plead
not guilty, we are satisfied that the magistrate judge’s Rule 11 omission did not affect
Lopez-Perez’s substantial rights.
Turning to Lopez-Perez’s sentencing claims, we review a defendant’s sentence for
procedural and substantive reasonableness, applying a deferential “abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 51 (2007). In evaluating procedural
reasonableness, we consider whether the district court adequately explained the
defendant’s sentence. United States v. Blue, 877 F.3d 513, 518 (4th Cir. 2017). “Where a
defendant (or prosecutor) presents nonfrivolous reasons for imposing a sentence outside
the Guidelines, the sentencing judge must address or consider those arguments and explain
why he has rejected them.” United States v. Powers, 40 F.4th 129, 137 (4th Cir. 2022)
3 USCA4 Appeal: 23-4469 Doc: 32 Filed: 03/28/2025 Pg: 4 of 6
(internal quotation marks omitted). As long as the “district court addresses [the]
defendant’s ‘central thesis,’” an exhaustive explanation is not required. Id.
After unlawfully reentering the United States, Lopez-Perez was charged with—and
eventually pleaded guilty to—several North Carolina crimes, including kidnapping and
assault inflicting serious injury. He spent two years in North Carolina custody before being
transferred to federal custody in connection with the illegal reentry charge.
At sentencing, Lopez-Perez asked the district court to consider that the Bureau of
Prisons would not credit against his federal sentence the time he had spent in state custody.
According to Lopez-Perez, the court neglected to address this argument, which was
premised on U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n.7 (2021). Application
Note 7 provides that a district court may consider a downward departure for an unlawful
reentry defendant who has served time in state custody that will not be credited to his
federal sentence. USSG § 2L1.2 cmt. n.7. However, “[s]uch a departure should be
considered only in cases where the departure is not likely to increase the risk to the public
from further crimes of the defendant.” Id. Relevant factors include “whether the defendant
engaged in additional criminal activity after illegally reentering the United States,” “the
seriousness of any such additional criminal activity,” and “the seriousness of the
defendant’s other criminal history.” Id.
Here, a downward departure under Application Note 7 was clearly unwarranted in
light of the extremely serious and violent crimes that Lopez-Perez committed upon
reentering the United States, as well as his substantial criminal history. We therefore
4 USCA4 Appeal: 23-4469 Doc: 32 Filed: 03/28/2025 Pg: 5 of 6
conclude that Lopez-Perez’s argument was frivolous, such that the district court did not
abuse its discretion by declining to address it directly.
Next, Lopez-Perez claims the district court ignored his argument that, to avoid
unwarranted sentencing disparities, the court should consider data from the United States
Sentencing Commission showing the average sentence received by unlawful reentry
offenders. On the contrary, the court responded to this argument by pointing out that the
Sentencing Commission’s data did not account for Lopez-Perez’s particular circumstances.
See United States v. Nance, 957 F.3d 204, 212-13 (4th Cir. 2020) (explaining that, when
imposing sentence, a district court “must conduct an individualized assessment” by
applying the 18 U.S.C. § 3553(a) factors “to the particular defendant” being sentenced
(internal quotation marks omitted)). Thus, we discern no abuse of discretion.
Finally, Lopez-Perez argues that his 60-month sentence—an upward variance from
the 30-to-37-month Sentencing Guidelines range—is substantively unreasonable in light
of the magnitude of the variance and the time he spent in state custody. To be substantively
reasonable, a sentence must be “sufficient, but not greater than necessary,” to satisfy the
goals of sentencing. 18 U.S.C. § 3553(a). “We will generally find a variance sentence
reasonable when the reasons justifying the variance are tied to § 3553(a) and are plausible.”
United States v. Provance, 944 F.3d 213, 219 (4th Cir. 2019) (internal quotation marks
omitted). “However, when the variance is a substantial one . . . we must more carefully
scrutinize the reasoning offered by the district court in support of the sentence. And the
farther the court diverges from the advisory guideline range, the more compelling the
reasons for the divergence must be.” Id. at 219-20 (cleaned up). Still, we “must give due
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deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the
extent of the variance.” Gall, 552 U.S. at 51.
The district court thoroughly justified its decision to vary upward from the
Guidelines range, citing Lopez-Perez’s high likelihood of recidivism, his significant
criminal history, and the need for the sentence to protect the public and promote respect
for the law. We therefore conclude that Lopez-Perez’s sentence is substantively
reasonable.
Accordingly, we affirm the district court’s judgment. 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