UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4695

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DOMINGO ROMERO MOLINA, a/k/a Mingo,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Harrisonburg. James C. Turk, Senior

District Judge. (5:03-cr-30053-JCT-3)

Submitted: March 12, 2007 Decided: May 7, 2007

Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jay K. Wilk, JAY K. WILK, P.C., Woodstock, Virginia, for Appellant.

William Frederick Gould, OFFICE OF THE UNITED STATES ATTORNEY,

Charlottesville, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Domingo Romero Molina appeals his 180-month sentence

imposed following our remand for resentencing. A jury convicted

him of conspiracy to distribute and possess with intent to

distribute 500 grams or more of methamphetamine and possession of

a firearm in furtherance of a drug trafficking crime. His attorney

has filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967). Though notified of his opportunity to file a pro se

supplemental brief, Molina has not done so. The Government has

declined to file a responding brief. Finding no error in Molina’s

resentencing, we affirm.

Molina asserts the district court erred in resentencing

him to 180 months in prison. This court reviews a post-Booker

sentence "to determine whether the sentence is within the

statutorily prescribed range and is reasonable." United States v.

Moreland, 437 F.3d 424, 433 (4th Cir.) (internal quotation marks

and citation omitted), cert. denied, 126 S. Ct. 2054 (2006). "[A]

sentence within the proper advisory Guidelines range is

presumptively reasonable." United States v. Johnson, 445 F.3d 339,

341 (4th Cir. 2006). "[A] defendant can only rebut the presumption

by demonstrating that the sentence is unreasonable when measured

against the § 3553(a) factors." United States v. Montes-Pineda, 445

F.3d 375, 379 (4th Cir. 2006), petition for cert. filed, __
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U.S.L.W. __ (U.S. July 21, 2006) (No. 06-5439) (internal quotation

marks and citation omitted). 

A post-Booker sentence may be unreasonable for procedural

and substantive reasons. "A sentence may be procedurally

unreasonable, for example, if the district court provides an

inadequate statement of reasons . . . . A sentence may be

substantively unreasonable if the court relies on an improper

factor or rejects policies articulated by Congress or the

Sentencing Commission." Moreland, 437 F.3d at 434 (citations

omitted). "[A] district court’s explanation should provide some

indication (1) that the court considered the § 3553(a) factors with

respect to the particular defendant; and (2) that it has also

considered the potentially meritorious arguments raised by both

parties about sentencing." Montes-Pineda, 445 F.3d at 380

(citations omitted). "[I]n determining whether there has been an

adequate explanation, [this court does] not evaluate a court’s

sentencing statements in a vacuum." Id. at 381. Rather, "[t]he

context surrounding a district court’s explanation may imbue it

with enough content for [this court] to evaluate both whether the

court considered the § 3553(a) factors and whether it did so

properly." Id.

The district court’s calculation of Molina’s guidelines

range did not change upon remand. His adjusted offense level was

35, and his criminal history category was two, with a resulting
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guidelines range of 188 to 235 months. There was a mandatory

sixty-month sentence for the firearm offense. At the second

sentencing hearing, defense counsel requested a total sentence of

180 months (120 months plus 60 months); the Government requested a

total sentence of 248 months (188 months plus 60 months), which it

viewed as “the minimum guideline sentence.” The Government

objected to any departure downward from 248 to 180 months.

Ultimately, however, the district court imposed the sentence it

suggested it would impose at Molina’s first sentencing hearing “if

the Guidelines were not applicable,” 120 months for the drug

offense to be followed by the mandatory 60 months for the firearm

offense, for a total of 180 months. 

The district court also stated at the second sentencing

hearing that it felt “the sentence imposed is reasonable under all

of the circumstances” and:

I’ve considered all of the factors set forth in the

statute concerning what the appropriate sentence should

be, what the Court should take into consideration and I

feel that the 120 months and the 60 months are

appropriate under all of the circumstances and is a

reasonable sentence.

(SJA 10). Thus, the district court stated it considered the

§ 3553(a) factors before the sentence was imposed. We conclude

Molina’s sentence is reasonable and affirm it.

Molina also asserts he should have received an

unspecified downward departure for reasons that are not explained.

We find this issue is meritless because Molina did in fact benefit
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from a downward departure at his sentencing. Defense counsel did

not argue for any further downward departure at the sentencing

hearing, so review for such error would be for plain error at best,

and we find no such plain error.

Appellate counsel also notes Molina contends that newly

discovered evidence warrants a new trial. We affirmed the firearm

conviction in Molina’s first appeal, in which he asserted the

evidence was “too skimpy” to support his jury conviction. To the

extent that Molina is again attacking the sufficiency of the

evidence to support the firearm conviction, the court has already

rejected such a claim and it is beyond the scope of the court’s

remand. We find this claim is meritless. We would not grant a

motion for new trial based upon newly discovered evidence in the

first instance. Molina must file such a motion for new trial in

the district court under Fed. R. Crim. P. 33. 

In accordance with Anders, we have reviewed the record in

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

therefore affirm Molina’s conviction and sentence. This court

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

petition the Supreme Court of the United States for further review.

If Molina 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 Molina.
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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