UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4509

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

FRANCISCO CHAVEZ-NUNEZ, a/k/a Paco, 

 Defendant – Appellant. 

Appeal from the United States District Court for the Western 

District of North Carolina, at Statesville. Richard L. 

Voorhees, District Judge. (5:07-cr-00014-RLV-CH-1) 

Submitted: July 28, 2009 Decided: August 17, 2009 

Before WILKINSON, MICHAEL, and AGEE, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

J. Michael McGuinness, THE MCGUINNESS LAW FIRM, Elizabethtown, 

North Carolina, for Appellant. Amy Elizabeth Ray, Assistant 

United States Attorney, Asheville, North Carolina, Gretchen C.F. 

Shappert, United States Attorney, UNITED STATES DEPARTMENT OF 

JUSTICE, Washington, D.C., for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

Francisco Chavez-Nunez appeals his sentence to sixty 

months in prison and four years of supervised release after 

pleading guilty to conspiracy to possess with intent to 

distribute at least 100 kilograms of marijuana in violation of 

21 U.S.C. § 846 (2006). Chavez-Nunez’s attorney has filed a 

brief pursuant to Anders v. California, 386 U.S. 738 (1967), 

asserting, in his opinion, there are no meritorious grounds for 

appeal but raising the issues of whether the district court 

complied with Fed. R. Crim. P. 11 when accepting Chavez-Nunez’s 

guilty plea, whether his sentence is reasonable, and whether the 

record shows ineffective assistance of counsel. Chavez-Nunez 

was notified of his right to file a pro se supplemental brief 

but has not done so. Finding no reversible error, we affirm. 

Appellate counsel first questions whether the district 

court complied with Fed. R. Crim. P. 11 in accepting ChavezNunez’s guilty plea. However, he alleges no error and concludes 

that the district court fully complied with the rule and there 

was no prejudicial error. Because Chavez-Nunez did not move in 

the district court to withdraw his guilty plea, we review this 

challenge for plain error. See United States v. Martinez, 277 

F.3d 517, 525 (4th Cir. 2002). Thus, it is Chavez-Nunez’s 

burden to show (1) error; (2) that is plain; (3) affecting his 

substantial rights; and (4) we should exercise our discretion to 

2 
notice the error. Id. at 529. To show his substantial rights 

were affected, Chavez-Nunez must demonstrate that absent the 

error, he would not have entered his guilty plea. Id. at 532. 

We may consider the entire record to determine the effect of any 

error. See United States v. Vonn, 535 U.S. 55, 74-75. 

We have reviewed the record and find two possible 

errors in the plea colloquy conducted by the magistrate judge. 

Although the magistrate judge properly informed Chavez-Nunez 

that as a result of his plea, he faced a mandatory minimum 

prison term of five years, a maximum prison term of forty years, 

a fine of up to $2,000,000, and a period of supervised release 

following any prison term, he did not specifically inform 

Chavez-Nunez of the mandatory minimum four-year supervised 

release term or of the district court’s obligation to impose a 

special assessment. We conclude, however, that Chavez-Nunez has 

not shown any possible error affected his substantial rights. 

First, he does not claim he would not have entered his 

guilty plea absent the error. Moreover, the presentence report 

correctly noted Chavez-Nunez’s supervised release term was at 

least four years and that a special assessment of $100 was 

mandatory; Chavez-Nunez confirmed at his sentencing hearing that 

his attorney had reviewed the presentence report with him and 

that he understood the possible penalties of the charge to which 

3 
he was pleading guilty; and the district court at that time 

reaffirmed its acceptance of his guilty plea. 

Appellate counsel next questions whether ChavezNunez’s sentence is reasonable. He acknowledges the sentence 

imposed was within the advisory guideline range and consistent 

with the parties’ plea agreement, but he questions whether the 

district court complied with United States v. Booker, 543 U.S. 

220 (2005), and properly applied the relevant factors under 18 

U.S.C. § 3553(a) (2006). We review a sentence for abuse of 

discretion. Gall v. United States, 128 S. Ct. 586, 591 (2007). 

The first step in this review requires us to ensure that the 

district court committed no significant procedural error, such 

as improperly calculating the guideline range. United States 

v. Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied, 

128 S. Ct. 2525 (2008). We then consider the substantive 

reasonableness of the sentence imposed, taking into account the 

totality of the circumstances. Gall, 128 S. Ct. at 597. 

We have reviewed the record and conclude that the 

district court did not abuse its discretion in sentencing 

Chavez-Nunez, and his sentence is reasonable. Chavez-Nunez was 

sentenced to the mandatory minimum sentence under the statute of 

five years in prison and four years of supervised release. 

Thus, the district court had no discretion to impose a lower 

sentence, see United States v. Robinson, 404 F.3d 850, 862 (4th 

4 
Cir. 2005), and Chavez-Nunez’s sentence is per se reasonable. 

See United States v. Farrior, 535 F.3d 210, 224 (4th Cir. 2008). 

Finally, appellate counsel questions whether ChavezNunez received ineffective assistance of counsel but he states 

he cannot find any ineffective assistance appearing on the 

record. We may only address a claim of ineffective assistance 

on direct appeal if the lawyer’s ineffectiveness conclusively 

appears on the record. See United States v. Baldovinos, 434 

F.3d 233, 239 (4th Cir. 2006). We find that the record does not 

conclusively show ineffective assistance. 

In accordance with Anders, we have reviewed the entire 

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 his client, in writing, 

of his right to petition the Supreme Court of the 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 leave to 

withdraw from representation. Counsel’s motion must state that 

a copy thereof was served on the client. 

5 
6 

We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before the court and argument would not aid the decisional 

process. 

AFFIRMED