UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4659

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ARMANDO LUVIANO-VILLANUEVA,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Columbia. Joseph F. Anderson, Jr., District 

Judge. (3:11-cr-02135-JFA-2)

Submitted: February 20, 2014 Decided: February 25, 2014

Before DUNCAN, DIAZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis H. Lang, CALLISON TIGHE & ROBINSON, LLC, Columbia, South 

Carolina, for Appellant. John David Rowell, Assistant United 

States Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Armando Luviano-Villanueva pleaded guilty pursuant to 

a written plea agreement to conspiracy to possess with intent to 

distribute over five kilograms of cocaine. He received a 

168-month sentence. On appeal, 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 raising 

whether Luviano-Villanueva’s waiver of appellate rights was 

knowing and voluntary and whether the sentence imposed by the 

district court is reasonable. Luviano-Villanueva has filed a 

pro se supplemental brief. The Government declined to file a 

response. We affirm.

Although counsel raises the voluntariness of the 

waiver provision, the Government has not asserted the waiver. 

In light of our responsibility under Anders and giving 

Luviano-Villanueva the benefit of the doubt, we also review the 

voluntariness of the entire guilty plea. Because 

Luviano-Villanueva did not move to withdraw his plea, we review 

his Fed. R. Crim. P. 11 hearing for plain error. United 

States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Here, we 

find no error, as the district court fully complied with Rule 11 

when accepting Luviano-Villanueva’s plea. Given no indication 

to the contrary, we therefore find that Luviano-Villanueva’s 

plea was knowing and voluntary, and, consequently, final and 
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binding. See United States v. Lambey, 974 F.2d 1389, 1394 (4th 

Cir. 1992).

Next we review Luviano-Villanueva’s sentence for 

reasonableness using an abuse of discretion standard. Gall v. 

United States, 552 U.S. 38, 51 (2007). The court first reviews 

for significant procedural error, and if the sentence is free 

from such error, we then consider substantive reasonableness. 

Id. at 51. Procedural error includes improperly calculating the 

Sentencing Guidelines range, treating the Guidelines range as 

mandatory, failing to consider the 18 U.S.C. § 3553(a) (2012)

factors, and failing to adequately explain the selected 

sentence. Id. To adequately explain the sentence, the district 

court must make an “individualized assessment” by applying the 

relevant § 3553(a) factors to the case’s specific circumstances. 

United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). The

individualized assessment need not be elaborate or lengthy, but 

it must be adequate to allow meaningful appellate review. Id.

at 330. Substantive reasonableness is determined by considering 

the totality of the circumstances, and if the sentence is within 

the properly-calculated Guidelines range, this court applies a 

presumption of reasonableness. United States v. Strieper, 666 

F.3d 288, 295 (4th Cir. 2012).

The district court heard argument from the parties, 

afforded Luviano-Villanueva an opportunity to allocute, declined 
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Luviano-Villanueva’s request for a downward variance and imposed 

a sentence of 168 months—at the bottom of the Guidelines range. 

The court heard argument on the downward variance and noted that 

Luviano-Villanueva did not have a prior criminal record and that 

he appeared remorseful. However the court also noted that the 

distribution of five kilograms of cocaine was a serious offense. 

The court expressly considered the § 3553(a) factors and 

rendered an individualized assessment in this case. The court 

stated that the sentence was sufficiently severe, but not 

greater than necessary, to punish the offense. We conclude that 

Luviano-Villanueva has not rebutted the presumption of 

reasonableness and that the court did not abuse its discretion 

in imposing the chosen sentence. 

Luviano-Villanueva’s supplemental brief argued that 

his sentence constitutes cruel and unusual punishment because he 

is a first-time offender and, he alleges, the nature of the 

offense was not serious. Even if we may review an Eighth 

Amendment proportionality challenge, the facts here do not 

demonstrate a sentence that is constitutionally disproportionate 

to the offense of conviction and that is cruel and unusual in 

violation of the Eighth Amendment. See United States v. 

Hashime, 734 F.3d 278, 286-87 (4th Cir. 2013) (King, J., 

concurring) (drawing attention “to a misperception of the law of 

this Court with respect to whether a sentence short of life 
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imprisonment may be reviewed to ensure that it is 

constitutionally proportionate to the offense of conviction 

. . . .”).

In accordance with Anders, we have reviewed the record 

in this case and have found no meritorious issues for appeal. 

We therefore affirm Luviano-Villanueva’s conviction and 

sentence. This court requires that counsel inform 

Luviano-Villanueva, in writing, of the right to petition the 

Supreme Court of the United States for further review. If 

Luviano-Villanueva 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 Luviano-Villanueva. 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