UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4491

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

GENARO MENDOZA RESENDIZ, a/k/a Freddie,

Defendant – Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. James A. Beaty, Jr., 

Chief District Judge. (1:08-cr-00366-JAB-6)

Submitted: February 22, 2011 Decided: March 22, 2011

Before MOTZ, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

George E. Crump, III, Rockingham, North Carolina, for Appellant. 

Sandra Jane Hairston, Assistant United States Attorney, 

Greensboro, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Genaro Mendoza Resendiz pled guilty pursuant to a plea 

agreement to one count of conspiracy to distribute cocaine 

hydrochloride, in violation of 21 U.S.C. § 846 (2006), and was 

sentenced to ninety-two months in prison. Counsel has filed a 

brief in accordance with Anders v. California, 386 U.S. 738 

(1967), claiming that although he believes there are no 

meritorious issues for appeal, it is arguable that the district 

court: (i) did not comply with Fed. R. Crim. P. 11 when it 

accepted Resendiz’s guilty plea because it did not inform 

Resendiz of the elements the Government had to prove to 

establish Resendiz’s guilt; (ii) erred when it increased 

Resendiz’s offense level two levels based on his firearm 

possession, pursuant to U.S. Sentencing Guidelines Manual 

(“USSG”) § 2D1.1(b)(1) (2009), because Resendiz was not charged 

with and did not plead guilty to firearm possession; and (iii) 

imposed an unreasonable sentence because (a) it failed to fully 

articulate the 18 U.S.C. § 3553(a) (2006) factors when it 

imposed Resendiz’s sentence, and (b) refused to impose a variant 

sentence. Resendiz has not filed a pro se supplemental brief 

despite receiving notice that he may do so, and the Government 

declined to file a responsive brief. Finding no error, we 

affirm.
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First, we find that the district court substantially 

complied with Rule 11. Because Resendiz did not move the 

district court to withdraw his guilty plea, any errors in the 

Rule 11 hearing are reviewed for plain error. United States v. 

Martinez, 277 F.3d 517, 525-26 (4th Cir. 2002). “To establish 

plain error, [Resendiz] must show that an error occurred, that 

the error was plain, and that the error affected his substantial 

rights.” United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 

2007). Even if Resendiz satisfies these requirements, the court 

retains discretion to correct the error, which it should not 

exercise unless the error seriously affects the fairness, 

integrity or public reputation of judicial proceedings. Id.

The district court substantially complied with Rule 

11’s requirements, ensuring that Resendiz’s plea was knowing and 

voluntary, that he understood the rights he was giving up by 

pleading guilty and the sentence he faced, and that he committed 

the offense to which he was pleading guilty. Even assuming, 

arguendo, that the district court erred by failing to identify 

the elements of the charge to which Resendiz pled guilty, and 

that the error was plain, any error did not affect Resendiz’s 

substantial rights. 

In the guilty plea context, a defendant meets this 

burden by showing a reasonable probability that he would not 

have pled guilty but for the court’s Rule 11 omissions. See
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United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009). 

However, Resendiz does not suggest that he would not have pled 

guilty had the Rule 11 colloquy been more exacting and, thus, he 

fails to show plain error. This is especially true since 

Resendiz attested in his plea agreement that the nature and 

elements of the charge that the Government had to prove were 

explained to him by his attorney. Accordingly, we conclude that 

no error, plain or otherwise, was committed during the district 

court’s acceptance of Resendiz’s guilty plea and therefore 

affirm Resendiz’s conviction. See id. at 344 (“In the absence 

of any evidence in the record suggesting that [the defendant] 

would not have entered his plea in the absence of the error in 

this case, we are left with only the existence of the error 

itself.”).

We also affirm Resendiz’s sentence. After United 

States v. Booker, 543 U.S. 220 (2005), this court reviews a 

sentence for reasonableness, using an abuse of discretion 

standard of review. Gall v. United States, 552 U.S. 38, 51 

(2007). The first step in this review requires the court to 

ensure that the district court committed no significant 

procedural error. United States v. Evans, 526 F.3d 155, 161 

(4th Cir. 2008). Procedural errors include “failing to 

calculate (or improperly calculating) the Guidelines range, 

treating the Guidelines as mandatory, failing to consider the 
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§ 3553(a) factors, selecting a sentence based on clearly 

erroneous facts, or failing to adequately explain the chosen 

sentence - including an explanation for any deviation from the 

Guidelines range.” Gall, 552 U.S. at 51. 

If, and only if, this court finds the sentence 

procedurally reasonable can the court consider the substantive 

reasonableness of the sentence imposed. United States v. 

Carter, 564 F.3d 325, 328 (4th Cir. 2009). The court presumes 

that a sentence within the Guidelines range is reasonable. See

United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). We 

conclude that the district court committed no reversible error 

when it imposed Resendiz’s sentence and thus hold that 

Resendiz’s ninety-two-month sentence is reasonable. 

A review of Resendiz’s presentence investigation 

report (“PSR”) establishes that he was properly placed in 

criminal history category I and that the district court 

correctly attributed him with a total offense level of twentynine, yielding a Guidelines range of eighty-seven to 108 months. 

See USSG §§ 2D1.1, 3E1.1; ch.5, pt. A (2009). Although counsel 

suggests that Resendiz’s offense level should not have been 

increased two levels pursuant to USSG § 2D1.1(b)(1), we conclude 

that it was appropriate for Resendiz’s offense level to be 

increased based on his possession of a firearm during the 
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commission of the crime to which he plead guilty. See USSG 

§ 2D1.1(b)(1), cmt. n.3 (2009).

At sentencing, the district court adopted the PSR’s 

factual findings and Guidelines range calculations, and 

appropriately afforded counsel an opportunity to argue for a 

variant sentence, in compliance with Fed. R. Crim. P. 

32(i)(3)(A), (i)(4)(A)(i). Although not raised by counsel in 

the Anders brief, we note that the district court committed 

error when it failed to afford Resendiz an opportunity to 

allocute prior to sentencing. See Fed. R. Crim. P. 

32(i)(4)(A)(ii); see also Green v. United States, 365 U.S. 301, 

305 (1961) (“[T]rial judges should leave no room for doubt that 

the defendant has been issued a personal invitation to speak 

prior to sentencing.”). Because Resendiz did not object 

regarding allocution in the district court, that error is also 

subject to plain error review. See United States v. Lewis, 10 

F.3d 1086, 1092 (4th Cir. 1993) (applying plain error analysis 

to allocution denial). 

The denial of allocution does not per se affect a 

defendant’s “substantial rights.” Id. In this case, the 

district court recognized that it may have neglected to ask 

Resendiz if he wished to allocute prior to imposing his sentence 

and eventually asked Resendiz if he wished to allocute. 

Resendiz nonetheless responded that he did not, since the issues 
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he would have addressed with the district court were already 

addressed by his attorney. Moreover, Resendiz does not assert 

that he may have received a lesser sentence had he been allowed 

to allocute sooner. Thus, because Resendiz has not established 

that had he been allowed to allocute, his sentence may have been 

lower, he has not established that his substantial rights were 

violated and, accordingly, the district court’s error did not 

amount to plain error. Cf. United States v. Cole, 27 F.3d 996, 

999 (4th Cir. 1994) (recognizing plain error as a result of 

district court’s failure to allow defendant to allocute where, 

after issue was raised by defendant on appeal, this court 

identified reasons why the district court may have imposed a 

lesser sentence had defendant been allowed to address the 

court). 

We also discern no reversible error in the district 

court’s pronouncement of Resendiz’s sentence. In evaluating a 

district court’s explanation of a selected sentence, this court 

has held that, although a district court must consider the 

statutory factors and explain its sentence, it need not 

explicitly reference § 3553(a) or discuss every single factor on 

the record. United States v. Johnson, 445 F.3d 339, 345 (4th 

Cir. 2006). However, the district court still “must make an 

individualized assessment based on the facts presented,” and 

apply the “relevant § 3553(a) factors to the specific 
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circumstances of the case before it.” Carter, 564 F.3d at 328

(quotation marks and emphasis omitted). 

The court must also “state in open court the 

particular reasons supporting its chosen sentence” and “set 

forth enough to satisfy” this court that it has “considered the 

parties’ arguments and has a reasoned basis for exercising [its] 

own legal decisionmaking authority.” Id. (quotation marks 

omitted). In other words, the reasons articulated by the 

district court for a given sentence need not be “couched in the 

precise language of § 3553(a)” as long as the reasons “can be 

matched to a factor appropriate for consideration under that 

statute and [are] clearly tied to [the defendant’s] particular 

situation.” United States v. Moulden, 478 F.3d 652, 658 

(4th Cir. 2007). 

“By drawing arguments from § 3553 for a sentence 

different than the one ultimately imposed, [Resendiz] 

sufficiently alert[ed] the district court of its responsibility 

to render an individualized explanation addressing those 

arguments, and thus preserve[d] [his] claim.” United States v. 

Lynn, 592 F.3d 572, 578 (4th Cir. 2010). Accordingly, we review 

the district court’s explanation for Resendiz’s sentence under

the abuse of discretion standard. See id. at 576; cf. United 

States v. Hernandez, 603 F.3d 267, 270 (4th Cir. 2010)

(reviewing claim of procedural unreasonableness for plain error 
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because defendant did not argue for a sentence different from 

the sentence that he received). 

Prior to imposing Resendiz’s sentence, the district 

court explained why it rejected counsel’s argument for a variant 

sentence; namely, it did not agree that Resendiz’s conduct was 

similar to the conduct of his co-conspirator to warrant the 

variance. In doing so, the district court thoroughly addressed 

the nature and circumstances of Resendiz’s offense. 

Although the district court did not explicitly address 

counsel’s arguments regarding his family, work history and lack 

of criminal history prior to imposing sentence, the district 

court clearly listened to counsel’s arguments and did state that 

it considered Resendiz’s advisory Guidelines range, which 

included Resendiz’s category I criminal history, but found that 

a sentence in the middle of that range was appropriate. Having 

expressly indicated that it considered the Guidelines and the 

nature and circumstances of Resendiz’s crime in fashioning an 

appropriate sentence, the district court undertook a sufficient 

§ 3553(a) analysis in sentencing Resendiz. Cf. Johnson, 445 

F.3d at 345 (recognizing that “[m]any of the § 3553(a) factors 

are already incorporated into any Guidelines determination, and 

the § 3553(a) factors can themselves overlap.”). We conclude 

that the district court did not commit “significant procedural 

error” in failing to explicitly mention § 3553(a) or more 
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thoroughly explain Resendiz’s sentence. See Lynn, 592 F.3d at 

575. 

Having discerned no procedural sentencing error, we 

presume Resendiz’s within-Guidelines sentence to be correct. 

See Allen, 491 F.3d at 193. Although counsel suggests that 

Resendiz’s sentence is substantively unreasonable because it is 

not the variant sentence he requested, counsel’s mere suggestion 

is insufficient to overcome the presumption this court affords 

the within-Guidelines sentence. Accordingly, we affirm 

Resendiz’s ninety-two-month sentence. 

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 Resendiz, in writing, of the right 

to petition the Supreme Court of the United States for further 

review. If Resendiz requests that a petition be filed, but 

counsel believes that such a petition would be frivolous, 

counsel may move in this court for leave to withdraw from 

representation. Counsel’s motion must state that a copy thereof 

was served on Resendiz. 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