UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4585

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

NESTOR IVAN DUARTE, a/k/a Josue Cruz Estrada,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

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

Senior District Judge. (1:14-cr-00107-JAB-1)

Submitted: May 31, 2016 Decided: June 10, 2016

Before NIEMEYER and AGEE, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

James E. Quander, Jr., Winston-Salem, North Carolina, for 

Appellant. Graham Tod Green, Assistant United States Attorney, 

Greensboro, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Nestor Ivan Duarte appeals his conviction and sentence for 

two counts of obstructing commerce by robbery, in violation of 

18 U.S.C. §§ 2, 1951(a) (2012). Duarte pled guilty pursuant to 

a written plea agreement and was sentenced to 312 months’ 

imprisonment and 3 years of supervised release. On appeal, 

counsel for Duarte filed a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), asserting that there are no 

meritorious issues for appeal but seeking review of the adequacy 

of the district court’s Fed. R. Crim. P. 11 plea colloquy∗ and 

the reasonableness of Duarte’s sentence. Duarte did not file a 

supplemental pro se brief, despite receiving notice of his right 

to do so. The Government elected not to file a response to the 

Anders brief. We affirm the district court’s judgment.

Prior to accepting a guilty plea, a trial court, through 

colloquy with the defendant, must inform the defendant of, and 

determine that he understands, the nature of the charge to which 

the plea is offered, the penalties he faces, and the various 

 ∗ Counsel asserts that the district court’s plea colloquy 

insufficiently addressed the appellate waiver contained in 

Duarte’s plea agreement. The Government has not sought to 

enforce the waiver in this case; accordingly, we conduct a full 

review of the record as required by Anders. See United States 

v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (“If an Anders

brief is filed, the government is free to file a responsive 

brief raising the waiver issue (if applicable) or do nothing, 

allowing this court to perform the required Anders review.”).
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rights he is relinquishing by pleading guilty. Fed. R. Crim. P. 

11(b)(1); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 

1991). The district court also must ensure that the defendant’s 

plea was voluntary, was supported by a sufficient factual basis, 

and did not result from force, threats, or promises not 

contained in the plea agreement. Fed. R. Crim. P. 11(b)(2), 

(3); DeFusco, 949 F.2d at 119-20. “In reviewing the adequacy of

compliance with Rule 11, [we] should accord deference to the 

trial court’s decision as to how best to conduct the mandated 

colloquy with the defendant.” DeFusco, 949 F.2d at 116. 

Because Duarte did not move to withdraw his guilty plea in 

the district court or otherwise preserve any allegation of Rule 

11 error, we review the plea colloquy for plain error. United 

States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014). “To prevail 

on a claim of plain error, [Duarte] must demonstrate not only 

that the district court plainly erred, but also that this error 

affected his substantial rights.” Id. at 816. In the guilty 

plea context, a defendant “must demonstrate a reasonable 

probability that, but for the error, he would not have pleaded 

guilty.” Id. (internal quotation marks omitted). “Further, we 

will not correct any error unless we are convinced that a 

refusal to do so would seriously affect the fairness, integrity 

or public reputation of judicial proceedings.” Id. (internal 

quotation marks omitted). We conclude that Duarte has not 
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established plain error in his Rule 11 hearing. The district 

court correctly found Duarte’s plea knowing and voluntary.

Turning to Duarte’s sentence, we review a sentence for 

procedural and substantive reasonableness, applying “a 

deferential abuse-of-discretion standard.” Gall v. United 

States, 552 U.S. 38, 51 (2007). We must first ensure that the 

district court did not commit any “significant procedural 

error,” such as failing to properly calculate the applicable 

Sentencing Guidelines range, failing to consider the 18 U.S.C. 

§ 3553(a) (2012) sentencing factors, or failing to adequately 

explain the sentence. Id. If we find the sentence procedurally 

reasonable, we then consider its substantive reasonableness. 

Id. We presume on appeal that a sentence within the properly 

calculated Guidelines range is substantively reasonable. United 

States v. Strieper, 666 F.3d 288, 295 (4th Cir. 2012); see

United States v. Aplicano-Oyuela, 792 F.3d 416, 425 (4th Cir. 

2015) (applying presumption to term of supervised release). 

“Such a presumption can only be rebutted by showing that the 

sentence is unreasonable when measured against the . . . 

§ 3553(a) factors.” United States v. Louthian, 756 F.3d 295, 

306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014). 

Upon review, we discern no procedural or substantive 

sentencing error by the district court. The district court 

correctly calculated Duarte’s offense level, criminal history, 
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and advisory Guidelines range. The court afforded the parties 

an adequate opportunity to present arguments concerning the 

appropriate sentence and provided Duarte an opportunity to 

allocute. Finally, the court provided an adequate, 

individualized explanation of the within-Guidelines sentence. 

Nothing in the record rebuts the presumption that the sentence 

is substantively reasonable. 

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 Duarte, in writing, of the right to 

petition the Supreme Court of the United States for further 

review. If Duarte 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 Duarte. 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