UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4421

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

REGINO SALAS-CRUZ,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Robert J. Conrad, 

Jr., Chief District Judge. (3:10-cr-00128-RJC-1)

Submitted: February 20, 2013 Decided: February 28, 2013

Before SHEDD, DUNCAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Kenneth Darwin Snow, THE SNOW LEGAL GROUP, PLLC, 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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Regino Salas-Cruz pleaded guilty pursuant to a plea 

agreement to conspiracy to distribute and possess with intent to 

distribute at least one kilogram of heroin, in violation of 21 

U.S.C. §§ 846, 841(b)(1)(A) (2006). The district court 

sentenced Salas-Cruz to seventy months’ imprisonment. On 

appeal, counsel has filed a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), certifying that there are no 

meritorious issues for appeal, but questioning whether the 

district court sufficiently explained the imposed sentence. In 

Salas-Cruz’s pro se supplemental brief, he argues that his trial 

counsel was ineffective in failing to adequately advise him 

regarding his guilty plea, and he attempts to clarify that his 

involvement in the conspiracy was minor. The Government 

declined to file a responsive brief. Following a careful review 

of the record, we affirm.

Because Salas-Cruz did not move in the district court 

to withdraw his guilty plea, we review the Rule 11 hearing for 

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

Cir. 2002). To prevail under this standard, Salas-Cruz 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 11’s
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requirements, ensuring that Salas-Cruz’s plea was knowing and 

voluntary.

We review Salas-Cruz’s sentence under a deferential 

abuse-of-discretion standard. Gall v. United States, 552 U.S. 

38, 51 (2007). 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 § 3553(a) 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. 

If the sentence is within the appropriate Guidelines range, we 

apply a presumption on appeal that the sentence is reasonable. 

United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 

2010). Such a presumption is rebutted only if the defendant 

demonstrates “that the sentence is unreasonable when measured 

against the § 3553(a) factors.” United States v. Montes-Pineda, 
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445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks 

omitted).

We conclude that the district court committed neither 

procedural nor substantive error in sentencing. The court 

verified that Salas-Cruz discussed the presentence report with 

his attorney, ensured that Salas-Cruz had no objections to the 

presentence report, and heard argument from counsel and 

allocution from Salas-Cruz. The court accurately calculated and 

considered as advisory Salas-Cruz’s applicable Guidelines range. 

The district court also considered the § 3553(a) factors and 

explained that the within-Guidelines sentence was warranted in 

light of Salas-Cruz’s lack of criminal history, the seriousness 

of the offense, and Salas-Cruz’s involvement in the conspiracy. 

Further, neither counsel nor Salas-Cruz offers any grounds to 

rebut the presumption on appeal that the within-Guidelines 

sentence of seventy months’ imprisonment is substantively 

reasonable. Accordingly, we conclude that the district court 

did not abuse its discretion in sentencing Salas-Cruz.

In his pro se brief, Salas-Cruz asserts that his trial 

counsel rendered ineffective assistance. Claims of ineffective 

assistance of counsel are generally not cognizable on direct 

appeal, unless the record conclusively establishes counsel’s 

“objectively unreasonable performance” and resulting prejudice. 

United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). The 
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record does not conclusively establish that trial counsel 

rendered ineffective assistance to Salas-Cruz. Salas-Cruz must 

therefore bring his allegation of ineffective assistance of 

counsel in a 28 U.S.C.A. § 2255 (West Supp. 2012) motion, should 

he wish to pursue such a claim. United States v. Baptiste, 596 

F.3d 214, 216 n.1 (4th Cir. 2010).

In accordance with Anders, we have reviewed the entire 

record in this case and have found no meritorious issues for 

appeal. We therefore affirm Salas-Cruz’s conviction and 

sentence. This court requires that counsel inform Salas-Cruz, 

in writing, of the right to petition the Supreme Court of the 

United States for further review. If Salas-Cruz 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 Salas-Cruz.

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