UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4676

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

SERGIO LEON-RAMIREZ, a/k/a Humberto MarinCruz,

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. (1:05-cr-00183-JAB-3)

Submitted: August 22, 2007 Decided: September 5, 2007

Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Brian M. Aus, Durham, North Carolina, for Appellant. Anna Mills

Wagoner, United States Attorney, Greensboro, North Carolina; Robert

Albert Jamison Lang, OFFICE OF THE UNITED STATES ATTORNEY, WinstonSalem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Sergio Leon-Ramirez pled guilty pursuant to a written

plea agreement to obstruction of commerce by robbery, in violation

of 18 U.S.C. §§ 2, 1951 (2000) (“Count One”); brandishing a firearm

during and in relation to a crime of violence, in violation of 18

U.S.C. §§ 2, 924(c)(1)(A)(ii) (2000) (“Count Two”); and illegal

reentry by an aggravated felon after removal, in violation of 8

U.S.C. § 1326(a), (b)(2) (2000) (“Count Six”). The district court

sentenced Leon-Ramirez to concurrent eighty-month sentences for

Counts One and Six and a consecutive term of eighty-four months’

imprisonment on Count Two. Leon-Ramirez appealed, and his counsel

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

(1967), contending there are no meritorious issues for appeal but

asserting the sentence was unreasonable. Leon-Ramirez filed a pro

se supplemental brief contending his guilty plea was unknowing

because the district court did not recite the elements of his

offenses. The Government declined to file a responding brief.

Finding no error, we affirm.

After United States v. Booker, 543 U.S. 220 (2005), a

district court is no longer bound by the range prescribed by the

sentencing guidelines. United States v. Hughes, 401 F.3d 540, 546

(4th Cir. 2005). However, in imposing a sentence post-Booker,

courts still must calculate the applicable guidelines range after

making the appropriate findings of fact and consider the range in
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conjunction with other relevant factors under the guidelines and 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2007). United States v.

Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct.

2054 (2006). We will affirm a post-Booker sentence if it “is

within the statutorily prescribed range and is reasonable.” Id. at

433 (internal quotation marks and citation omitted). “[A] sentence

within the proper advisory Guidelines range is presumptively

reasonable.” United States v. Johnson, 445 F.3d 339, 341 (4th Cir.

2006); see Rita v. United States, ___ U.S. ___, 127 S. Ct. 2456

(2007) (upholding presumption).

The concurrent sentences for Counts One and Six were well

within the statutory maximum of twenty years’ imprisonment and were

also within the properly calculated sentencing guidelines range of

seventy to eighty-seven months’ imprisonment. We conclude the

district court’s imposition of sentence on these counts was

reasonable. With respect to Count Two, the district court

sentenced Leon-Ramirez to the statutory mandatory minimum. See 18

U.S.C. § 924(c)(1)(A)(ii) (2000) (providing consecutive term of not

less than seven years’ imprisonment). Booker “did nothing to alter

the rule that judges cannot depart below a statutorily provided

minimum sentence” except upon the Government’s motion on the basis

of substantial assistance. United States v. Robinson, 404 F.3d

850, 862 (4th Cir. 2005), cert. denied, 126 S. Ct. 288 (2005). We

likewise conclude the sentence for this count was proper.
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In his pro se supplemental brief, Leon-Ramirez contends

the district court erroneously failed to recite the elements of the

charged offenses during the Fed. R. Crim. P. 11 hearing. Because

Leon-Ramirez did not move in the district court to withdraw his

guilty plea, we review for plain error. United States v. Martinez,

277 F.3d 517, 525 (4th Cir. 2002). To establish plain error, LeonRamirez must show that an error occurred, that the error was plain,

and that the error affected his substantial rights. See United

States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). Even if

Leon-Ramirez satisfies these requirements, correction of the error

remains within the court’s discretion, which we will not exercise

unless the error seriously affects the fairness, integrity or

public reputation of judicial proceedings. Id. 

Prior to accepting Leon-Ramirez’s guilty plea, the

district court was required to determine Leon-Ramirez understood

the nature of each charge to which Leon-Ramirez was pleading. See

Fed. R. Crim. P. 11(b)(1)(G). However, Leon-Ramirez need not

receive this information at the plea hearing itself. See United

States v. DeFusco, 949 F.2d 114, 117 (4th Cir. 1991). The district

court was entitled to consider whether a written plea agreement

existed and to determine the plea was knowing and intelligent based

on information Leon-Ramirez received prior to the plea hearing.

Id. Leon-Ramirez’s signed plea agreement indicated he was informed

of the elements of each offense by his trial counsel prior to
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accepting the plea agreement. At the Rule 11 hearing, Leon-Ramirez

confirmed this was the case and indicated he understood the

elements based on the explanation provided by counsel.

Accordingly, we conclude Leon-Ramirez fails to establish plain

error.

In accordance with Anders, we have reviewed the record in

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

therefore affirm Leon-Ramirez’s convictions and sentence. This

court requires that counsel inform Leon-Ramirez, in writing, of the

right to petition the Supreme Court of the United States for

further review. If Leon-Ramirez 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 Leon-Ramirez.

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