UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4321 

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FRANCISCO DURAN AVILA, a/k/a J. Trinidad

Cervantez-R,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. James A. Beaty, Jr., Chief

District Judge. (1:06-cr-00270-JAB)

Submitted: September 13, 2007 Decided: September 18, 2007

Before GREGORY and DUNCAN, Circuit Judges, and WILKINS, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, III, Federal Public Defender, Gregory Davis, Senior

Litigator, Winston-Salem, North Carolina, for Appellant. Lisa Blue

Boggs, Assistant United States Attorney, Greensboro, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Francisco Duran Avila appeals from his sentence imposed

following his guilty plea to possession of cocaine with the intent

to distribute and possession of a firearm during a drug trafficking

crime. Avila’s attorney filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), challenging the reasonableness of

the sentence. Avila filed a pro se brief arguing that his sentence

was in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000).

Our review of the record discloses no reversible error;

accordingly, we affirm Avila’s conviction and sentence.

We find that Avila’s guilty plea was knowingly and

voluntarily entered after a thorough hearing pursuant to Fed. R.

Crim. P. 11. Avila was properly advised of his rights, the

offenses charged, and the mandatory minimum and maximum sentences

for the offenses. The court also determined that there was an

independent factual basis for the plea and that the plea was not

coerced or influenced by any promises. See United States v.

DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991).

Avila contends that the district court’s finding that he

was accountable for the equivalent of nine kilograms of cocaine

resulted in an increase in his sentence beyond the maximum

authorized by the charges in the indictment. We note that the

judicial fact finding of drug quantities used to determine Avila’s

sentence under the advisory guidelines calculation does not
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implicate Apprendi. See Apprendi v. New Jersey, 530 U.S. at 490

(“Other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable

doubt.”). The statutory maximum sentence for the drug trafficking

offense was forty years, and Avila’s sentence of eighty-seven

months on that charge is well below the statutory maximum.

We find that the district court properly applied the

Sentencing Guidelines and considered the relevant sentencing

factors before imposing Avila’s sentence. 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2007); see United States v. Hughes, 401 F.3d

540, 546-47 (4th Cir. 2005). Additionally, we find that the

sentence imposed—which was within the properly calculated guideline

range—was reasonable. United States v. Johnson, 445 F.3d 339, 341

(4th Cir. 2006) (“[A] sentence within the proper advisory

Guidelines range is presumptively reasonable.”); see Rita v. United

States, 127 S. Ct. 2456, 2462-69 (2007) (upholding application of

rebuttable presumption of reasonableness to within-guidelines

sentence). Accordingly, we affirm Avila’s sentence.

As required by Anders, we have reviewed the entire record

and have found no meritorious issues for appeal. We therefore

affirm Avila’s conviction and sentence. 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
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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. 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