UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4656

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

ABRAHAM HERNANDEZ TORRES, a/k/a Beto, a/k/a Chavez, 

 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. (3:07-cr-00233-RJC-2) 

Submitted: December 11, 2008 Decided: December 17, 2008 

Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

John J. Cacheris, DOZIER, MILLER, POLLARD & MURPHY, LLP, 

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Unpublished opinions are not binding precedent in this circuit.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

 Abraham Hernandez Torres pleaded guilty, pursuant to a 

plea agreement, to one count of conspiracy to possess with 

intent to distribute heroin and cocaine, in violation of 21 

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

sentenced him to 121 months of imprisonment, and Torres timely 

appealed. 

 On appeal, counsel filed an Anders1 brief, in which he 

states there are no meritorious issues for appeal, but questions 

whether Torres waived his right to appeal, and whether the 

district court erred in denying Torres’ motion for a downward 

variance sentence. The Government declined to file a brief. We 

affirm. 

 Because the Government declined to argue that Torres’ 

plea agreement appeal waiver bars his appeal, we do not consider 

sua sponte the effect of the waiver. United States v. Blick, 

408 F.3d 162, 168 (4th Cir. 2005). 

 We review a sentence imposed by the district court for 

procedural and substantive reasonableness under an abuse-ofdiscretion standard. Gall v. United States, 128 S. Ct. 586, 597 

(2007). The court considers the totality of the circumstances 

in assessing the substantive reasonableness of a sentence. Id.

 1 Anders v. California, 386 U.S. 738 (1967). 

2 
This court presumes that a sentence imposed within the properly 

calculated Guidelines range is reasonable. United States v. Go, 

517 F.3d 216, 218 (4th Cir. 2008); see Rita v. United States, 

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

reasonableness for within-Guidelines sentence). In considering 

the district court’s application of the Guidelines, this court 

reviews factual findings for clear error and legal conclusions 

de novo. United States v. Allen, 446 F.3d 522, 527 (4th Cir. 

2006). 

 The district court correctly calculated Torres’ 

Guidelines2 range and imposed a sentence within that range and 

within the statutory maximum. The 121-month sentence is one 

month greater than the applicable statutory minimum of 120 

months. See 21 U.S.C. § 841(b)(1)(A). In the absence of a 

Government motion for a departure, the district court lacked 

authority to sentence Torres below the statutory minimum. 

United States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005).3 

Our review of the record leads us to conclude that Torres’ 

sentence is reasonable. 

 2 U.S. Sentencing Guidelines Manual (2007). 

3

 Counsel suggests that the court could revisit the decision 

in Robinson. A panel of this court may not, however, overrule a 

prior published decision of the court. See United States v. 

Ruhe, 191 F.3d 376, 388 (4th Cir. 1999). 

3 
4 

 In accordance with Anders, we have reviewed the record 

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

We have reviewed the arguments asserted in Torres’ pro se 

supplemental brief and find them to be without merit. We 

therefore affirm Torres’ conviction and sentence. This court 

requires that counsel inform Torres, in writing, of the right to 

petition the Supreme Court of the United States for further 

review. If Torres 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 Torres. 

 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