USCA4 Appeal: 23-4597 Doc: 30 Filed: 06/03/2024 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-4596
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HERIBERTO PEREZ, a/k/a Alexis Santana-Cruz,
Defendant - Appellant.
No. 23-4597
Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. Loretta C. Biggs, District Judge. (1:23-cr-00094-LCB-1; 1:23-cr-00012- LCB-3)
Submitted: May 30, 2024 Decided: June 3, 2024 USCA4 Appeal: 23-4597 Doc: 30 Filed: 06/03/2024 Pg: 2 of 7
Before GREGORY and HARRIS, Circuit Judges, and MOTZ, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Todd A. Smith, SMITH GILES PLLC, Graham, North Carolina, for Appellant. Graham Tod Green, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2 USCA4 Appeal: 23-4597 Doc: 30 Filed: 06/03/2024 Pg: 3 of 7
PER CURIAM:
In 2005, Heriberto Perez pled guilty to three counts of distribution of cocaine base,
in violation of 21 U.S.C. § 841(a)(1). The court sentenced Perez to 192 months’
imprisonment, followed by five years’ supervised release. 1 In 2023, while on supervised
release, Perez pled guilty, pursuant to a written plea agreement, to conspiracy to distribute
fentanyl, in violation of 21 U.S.C. § 846, and distribution of fentanyl, in violation of 21
U.S.C. § 841(a), (b)(1)(A). Perez also admitted to violations of his conditions of
supervised release based on this new criminal conduct and his reentry to the United States
after he was removed. For the new criminal offenses, the district court sentenced Perez
to 97 months’ imprisonment, below the advisory Sentencing Guidelines range. The district
court also revoked his supervised release and sentenced him to a within-Guidelines term
of 60 months’ imprisonment, to run consecutively to the sentence for the new criminal
offenses. Perez appealed and counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), asserting that there are no meritorious grounds for appeal but
questioning whether Perez’s guilty plea was valid and whether his sentence is reasonable.
Perez has filed a pro se supplemental brief raising additional issues. 2
1 Perez was convicted and sentenced in the District Court for the District of Massachusetts. His sentence was later reduced to 188 months and, upon his arrest for violations of the terms of his supervised release, jurisdiction over his supervision was transferred to the district court. 2 We have considered the issues raised in Perez’s pro se brief and conclude that they lack merit.
3 USCA4 Appeal: 23-4597 Doc: 30 Filed: 06/03/2024 Pg: 4 of 7
A guilty plea is valid if the defendant voluntarily, knowingly, and intelligently pled
guilty “with sufficient awareness of the relevant circumstances and likely consequences.”
United States v. Fisher, 711 F.3d 460, 464 (4th Cir. 2013) (internal quotation marks
omitted). “A defendant’s solemn declarations in open court affirming a plea agreement
carry a strong presumption of verity.” United States v. Paylor, 88 F.4th 553, 560
(4th Cir. 2023) (cleaned up). Because Perez did not seek to withdraw his guilty plea in the
district court, we review the adequacy of the Fed. R. Crim. P. 11 hearing for plain error.
United States v. McCoy, 895 F.3d 358, 364 (4th Cir. 2018). “Under the plain error standard,
[we] will correct an unpreserved error if (1) an error was made; (2) the error is plain; (3) the
error affects substantial rights; and (4) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Harris, 890 F.3d 480, 491
(4th Cir. 2018) (internal quotation marks omitted). We have reviewed the record and
conclude that Perez entered his guilty plea knowingly and voluntarily and that a factual
basis supported the plea. See United States v. DeFusco, 949 F.2d 114, 116, 119-20
(4th Cir. 1991). Discerning no plain error, we conclude that Perez’s guilty plea was valid.
“We review the reasonableness of a [criminal] sentence under 18 U.S.C. § 3553(a)
using an abuse-of-discretion standard, regardless of whether the sentence is inside, just
outside, or significantly outside the Guidelines range.” United States v. Nance, 957 F.3d
204, 212 (4th Cir. 2020) (cleaned up). We must first “evaluate procedural reasonableness,
determining whether the district court committed any procedural error, such as improperly
calculating the Guidelines range, failing to consider the § 3553(a) factors, or failing to
adequately explain the chosen sentence.” Id. “If the sentence ‘is procedurally sound, [this]
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court should then consider the substantive reasonableness of the sentence,’ taking into
account the totality of the circumstances.” United States v. Provance, 944 F.3d 213, 218
(4th Cir. 2019) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). We afford a
presumption of reasonableness to any sentence within or below a properly calculated
Guidelines range. United States v. Gillespie, 27 F.4th 934, 945 (4th Cir. 2022). A defendant
can rebut this presumption only “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. 2014).
Our review of the record confirms the procedural reasonableness of Perez’s sentence
for his new criminal conduct. The court properly calculated the Guidelines range, provided
the parties an opportunity to argue for an appropriate sentence, addressed the § 3553(a)
factors, and explained the reasons for its sentence. Moreover, we conclude that Perez has
not rebutted the presumption of reasonableness of the below-Guidelines sentence. We
therefore further conclude that the sentence is substantively reasonable.
With respect to the revocation, a district court may revoke supervised release if it
“finds by a preponderance of the evidence that the defendant violated a condition of
supervised release.” 18 U.S.C.
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USCA4 Appeal: 23-4597 Doc: 30 Filed: 06/03/2024 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-4596
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HERIBERTO PEREZ, a/k/a Alexis Santana-Cruz,
Defendant - Appellant.
No. 23-4597
Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. Loretta C. Biggs, District Judge. (1:23-cr-00094-LCB-1; 1:23-cr-00012- LCB-3)
Submitted: May 30, 2024 Decided: June 3, 2024 USCA4 Appeal: 23-4597 Doc: 30 Filed: 06/03/2024 Pg: 2 of 7
Before GREGORY and HARRIS, Circuit Judges, and MOTZ, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Todd A. Smith, SMITH GILES PLLC, Graham, North Carolina, for Appellant. Graham Tod Green, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2 USCA4 Appeal: 23-4597 Doc: 30 Filed: 06/03/2024 Pg: 3 of 7
PER CURIAM:
In 2005, Heriberto Perez pled guilty to three counts of distribution of cocaine base,
in violation of 21 U.S.C. § 841(a)(1). The court sentenced Perez to 192 months’
imprisonment, followed by five years’ supervised release. 1 In 2023, while on supervised
release, Perez pled guilty, pursuant to a written plea agreement, to conspiracy to distribute
fentanyl, in violation of 21 U.S.C. § 846, and distribution of fentanyl, in violation of 21
U.S.C. § 841(a), (b)(1)(A). Perez also admitted to violations of his conditions of
supervised release based on this new criminal conduct and his reentry to the United States
after he was removed. For the new criminal offenses, the district court sentenced Perez
to 97 months’ imprisonment, below the advisory Sentencing Guidelines range. The district
court also revoked his supervised release and sentenced him to a within-Guidelines term
of 60 months’ imprisonment, to run consecutively to the sentence for the new criminal
offenses. Perez appealed and counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), asserting that there are no meritorious grounds for appeal but
questioning whether Perez’s guilty plea was valid and whether his sentence is reasonable.
Perez has filed a pro se supplemental brief raising additional issues. 2
1 Perez was convicted and sentenced in the District Court for the District of Massachusetts. His sentence was later reduced to 188 months and, upon his arrest for violations of the terms of his supervised release, jurisdiction over his supervision was transferred to the district court. 2 We have considered the issues raised in Perez’s pro se brief and conclude that they lack merit.
3 USCA4 Appeal: 23-4597 Doc: 30 Filed: 06/03/2024 Pg: 4 of 7
A guilty plea is valid if the defendant voluntarily, knowingly, and intelligently pled
guilty “with sufficient awareness of the relevant circumstances and likely consequences.”
United States v. Fisher, 711 F.3d 460, 464 (4th Cir. 2013) (internal quotation marks
omitted). “A defendant’s solemn declarations in open court affirming a plea agreement
carry a strong presumption of verity.” United States v. Paylor, 88 F.4th 553, 560
(4th Cir. 2023) (cleaned up). Because Perez did not seek to withdraw his guilty plea in the
district court, we review the adequacy of the Fed. R. Crim. P. 11 hearing for plain error.
United States v. McCoy, 895 F.3d 358, 364 (4th Cir. 2018). “Under the plain error standard,
[we] will correct an unpreserved error if (1) an error was made; (2) the error is plain; (3) the
error affects substantial rights; and (4) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Harris, 890 F.3d 480, 491
(4th Cir. 2018) (internal quotation marks omitted). We have reviewed the record and
conclude that Perez entered his guilty plea knowingly and voluntarily and that a factual
basis supported the plea. See United States v. DeFusco, 949 F.2d 114, 116, 119-20
(4th Cir. 1991). Discerning no plain error, we conclude that Perez’s guilty plea was valid.
“We review the reasonableness of a [criminal] sentence under 18 U.S.C. § 3553(a)
using an abuse-of-discretion standard, regardless of whether the sentence is inside, just
outside, or significantly outside the Guidelines range.” United States v. Nance, 957 F.3d
204, 212 (4th Cir. 2020) (cleaned up). We must first “evaluate procedural reasonableness,
determining whether the district court committed any procedural error, such as improperly
calculating the Guidelines range, failing to consider the § 3553(a) factors, or failing to
adequately explain the chosen sentence.” Id. “If the sentence ‘is procedurally sound, [this]
4 USCA4 Appeal: 23-4597 Doc: 30 Filed: 06/03/2024 Pg: 5 of 7
court should then consider the substantive reasonableness of the sentence,’ taking into
account the totality of the circumstances.” United States v. Provance, 944 F.3d 213, 218
(4th Cir. 2019) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). We afford a
presumption of reasonableness to any sentence within or below a properly calculated
Guidelines range. United States v. Gillespie, 27 F.4th 934, 945 (4th Cir. 2022). A defendant
can rebut this presumption only “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. 2014).
Our review of the record confirms the procedural reasonableness of Perez’s sentence
for his new criminal conduct. The court properly calculated the Guidelines range, provided
the parties an opportunity to argue for an appropriate sentence, addressed the § 3553(a)
factors, and explained the reasons for its sentence. Moreover, we conclude that Perez has
not rebutted the presumption of reasonableness of the below-Guidelines sentence. We
therefore further conclude that the sentence is substantively reasonable.
With respect to the revocation, a district court may revoke supervised release if it
“finds by a preponderance of the evidence that the defendant violated a condition of
supervised release.” 18 U.S.C. § 3583(e)(3). We review a district court’s revocation
decision for abuse of discretion and its factual findings underlying the revocation for clear
error. United States v. Padgett, 788 F.3d 370, 373 (4th Cir. 2015). We conclude that there
was no error in the district court’s decision to revoke Perez’s supervised release based on
his admission to the violations.
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With respect to Perez’s revocation sentence “[a] district court has broad discretion
when imposing a sentence upon revocation of supervised release.” United States v. Webb,
738 F.3d 638, 640 (4th Cir. 2013). Thus, we will “affirm a revocation sentence so long as
it is within the prescribed statutory range and is not plainly unreasonable.” United States v.
Coston, 964 F.3d 289, 296 (4th Cir. 2020) (internal quotation marks omitted). When
reviewing whether a revocation sentence is plainly unreasonable, we first determine
“whether the sentence is unreasonable at all.” Id. (internal quotation marks omitted).
“A revocation sentence is procedurally reasonable if the district court adequately
explains the chosen sentence after considering the Sentencing Guidelines’ nonbinding
Chapter Seven policy statements and the applicable 18 U.S.C. § 3553(a) factors,” id. at 297
(internal quotation marks omitted), and the explanation indicates “that the court considered
any potentially meritorious arguments raised by the parties,” United States v. Patterson,
957 F.3d 426, 436-37 (4th Cir. 2020) (internal quotation marks omitted). “A court need
not be as detailed or specific when imposing a revocation sentence as it must be when
imposing a post-conviction sentence, but it still must provide a statement of reasons for the
sentence imposed.” United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010) (internal
quotation marks omitted). “A revocation sentence is substantively reasonable if, in light
of the totality of the circumstances, the court states an appropriate basis for concluding that
the defendant should receive the sentence imposed.” Coston, 964 F.3d at 297 (internal
quotation marks omitted).
We conclude that Perez’s revocation sentence is both procedurally and substantively
reasonable. When imposing its sentence, the district court correctly calculated the policy
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statement range, considered the relevant statutory factors, imposed a sentence within the
statutory maximum, gave sufficiently detailed reasons for its decision, and addressed
Perez’s arguments for a lesser sentence.
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds for appeal. We therefore affirm the district court’s
judgments. This court requires that counsel inform Perez, in writing, of the right to petition
the Supreme Court of the United States for further review. If Perez 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 Perez.
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