UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-5047

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAGOBERTO SANTAMARIA FLORES,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Statesville. Richard L. Voorhees,

District Judge. (5:05-cr-00211-RLV)

Submitted: September 8, 2008 Decided: October 14, 2008

Before NIEMEYER, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, 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Unpublished opinions are not binding precedent in this circuit.
1The indictment alleged that the conspiracy was responsible

for 500 grams or more of a mixture or substance containing cocaine,

500 grams or more of a mixture or substance containing

methamphetamine, and a mixture or substance containing marijuana.

2

PER CURIAM:

Dagoberto Santamaria Flores appeals from his conviction

and 135-month sentence for conspiracy to possess with intent to

distribute quantities of cocaine, methamphetamine, and marijuana,

in violation of 21 U.S.C.A. §§ 841, 846 (West 1999 & Supp. 2008).1

Flores’ counsel filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), in which he asserts there are no meritorious

issues for appeal, but asks this court to review the adequacy of

Flores’ plea hearing and the reasonableness of his sentence.

Flores was given an opportunity to file a pro se supplemental

brief, but has not done so. Finding no error, we affirm.

Under Fed. R. Crim. P. 11(b)(1), the district court must

address the defendant in open court and inform him of the

following: the nature of the charge; any mandatory minimum sentence

and the maximum possible sentence; the applicability of the

Sentencing Guidelines; the court’s obligation to impose a special

assessment; the defendant’s right to an attorney; his right to

plead not guilty and be tried by a jury with the assistance of

counsel; his right to confront and cross-examine witnesses; his

right against self-incrimination; and his right to testify, present

evidence, and compel the attendance of witnesses. The defendant
2Flores consented to proceeding before a magistrate judge.

See 28 U.S.C. § 636(c)(1) (2000); United States v. Benton, 523 F.3d

424, 431-32 (4th Cir. 2008), petition for cert. filed, U.S.L.W.

 (U.S. July 25, 2008) (No. 08-5534).

3

also must be told that a guilty plea waives any further trial and

that his answers at the proceeding may be used against him in a

prosecution for perjury. Under Rule 11(b)(2), the court must

address the defendant to determine that the plea is voluntary. The

court must determine a factual basis for the plea under Rule

11(b)(3) and require disclosure of any plea agreement under Rule

11(c)(2). Because Flores did not move in the district court to

withdraw his guilty plea, any challenges to the Rule 11 hearing are

reviewed for plain error. See United States v. Martinez, 277 F.3d

517, 524-25 (4th Cir. 2002).

Flores contends the magistrate judge erred during the

Rule 11 hearing by failing to inform him of the elements of the

crime to which he was pleading guilty or to determine that he

understood the nature of the charge.2 The magistrate judge is

required to inform the defendant of, and determine that he

understands, “the nature of each charge to which [he] is pleading.”

Fed. R. Crim. P. 11(b)(1)(G). At the Rule 11 hearing, the

magistrate judge accurately explained the nature of the single

charge to Flores. Following the recitation of the charge, the

magistrate judge informed Flores as to the minimum and maximum

sentences he faced, “based on these quantities, 500 grams of
3

As part of the Rule 11 hearing, Flores also signed a document

indicating he had discussed the contents of the indictment with his

attorney and fully understood the charge against him. Furthermore,

at his sentencing hearing, Flores again stated that he understood

the charge and the possible penalties.

4

cocaine and 500 grams of methamphetamine.” Flores stated that he

understood the charge and the potential sentence he faced. In

light of the magistrate judge’s explanation and Flores’ admission

that he understood the charge and possible sentence,3

 there is

nothing in the record to support Flores’ claim that he believed he

was pleading guilty to “the separate individual offenses of a

methamphetamine and marijuana conspiracy only.” See Blackledge v.

Allison, 431 U.S. 63, 73-74 (1977). Furthermore, while Flores

contends he was responsible for a much lower drug amount than that

charged in the indictment, the magistrate judge specifically stated

that Flores was charged with being part of a conspiracy responsible

for at least 500 grams of cocaine and 500 grams of methamphetamine.

See Martinez, 277 F.3d at 530. Accordingly, we find the magistrate

judge adequately informed Flores of the nature of the charge.

Flores’ next claim is that there was not a sufficient

factual basis to support his guilty plea. Rule 11(b)(3) provides

that “[b]efore entering judgment on a guilty plea, the court must

determine that there is a factual basis for the plea.” This

requirement ensures that the district court “make[s] clear exactly

what a defendant admits to, and whether those admissions are

factually sufficient to constitute the alleged crime.” United
5

States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). Rule

11(b)(3) also serves to “protect[] a defendant who is in the

position of pleading voluntarily with an understanding of the

nature of the charge but without realizing that his conduct does

not actually fall within the charge.” United States v. Mastrapa,

509 F.3d 652, 660 (4th Cir. 2007) (internal citation and quotation

marks omitted). In determining whether a factual basis for the

plea exists, the district court is not limited to the Rule 11

colloquy, as the court “may conclude that a factual basis exists

from anything that appears on the record.” DeFusco, 949 F.2d at

120. The district court may also defer its inquiry until the

sentencing hearing. Martinez, 277 F.3d at 522 n.4. The district

court’s determination that there was a sufficient factual basis is

reviewed for abuse of discretion. Mastrapa, 509 F.3d at 660.

Flores contends there was not a sufficient factual basis

to support his guilty plea because he never admitted being involved

in the types and quantities of drugs charged in the indictment.

While Flores did equivocate on this matter during the sentencing

hearing, the district court may satisfy the factual basis

requirement by examining the presentence report (“PSR”). See

Martinez, 277 F.3d at 531-32. In this case, the PSR stated that

“[a]ll the drugs involved in this conspiracy were reasonably

foreseeable by Flores,” and that the organization was responsible

for at least six kilograms of methamphetamine powder, three
4Even if there was an insufficient factual basis for the

district court’s cocaine finding, its methamphetamine and marijuana

findings were more than sufficient to supply a factual basis for

Flores’ guilty plea to the § 846 conspiracy. Importantly, under

the contention Flores presents for plain error review, he admits

that he intended, in pleading guilty, to acknowledge responsibility

for eight ounces of methamphetamine and fifty-four kilograms of

marijuana. See Br. of Appellant 14. This admission alone

justifies the acceptance of his guilty plea to the § 846 conspiracy

and the sentence imposed.

6

kilograms of crystal methamphetamine, sixteen kilograms of cocaine

powder and 100 pounds of marijuana. The district court adopted the

PSR, which provided sufficient information to support the elements

of the charge to which Flores pled guilty. See Martinez, 277 F.3d

at 531-32. Despite objecting to the probation officer’s findings

as to the total amounts of cocaine and methamphetamine for which he

was held responsible, Flores provided no specific testimony during

the sentencing hearing in regard to cocaine. Additionally, Agent

Joseph Barringer’s testimony provided a sufficient factual basis

for the district court to determine that the methamphetamine

amounts provided in the PSR were properly attributable to Flores.4

Accordingly, we find the district court did not abuse its

discretion in determining that a sufficient factual basis existed

to support Flores’ guilty plea.

Finally, Flores claims that his sentence was

unreasonable, as there were a “number of factors presented” that

justified a sentence below the Guidelines range. Following United

States v. Booker, 543 U.S. 220 (2005), a district court must engage
7

in a multi-step process at sentencing. First, it must calculate

the appropriate advisory Guidelines range. It must then consider

the resulting range in conjunction with the factors set forth in 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2008) and determine an

appropriate sentence. Gall v. United States, 128 S. Ct. 586, 596

(2007). We review the district court’s imposition of a sentence

for abuse of discretion. Id. at 597; see also United States v.

Pauley, 511 F.3d 468, 473 (4th Cir. 2007). This court “must first

ensure that the district court committed no significant procedural

error, such as failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to

consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the

chosen sentence--including an explanation for any deviation from

the Guidelines range.” Gall, 128 S. Ct. at 597.

If there are no procedural errors, we then consider the

substantive reasonableness of the sentence. Id. “Substantive

reasonableness review entails taking into account the totality of

the circumstances, including the extent of any variance from the

Guidelines range.” Pauley, 511 F.3d at 473 (internal quotation

marks and citation omitted). While this court may presume a

sentence within the Guidelines range to be reasonable, we may not

presume a sentence outside the range to be unreasonable. Id.

Moreover, we must give deference to the district court’s decision
8

that the § 3553(a) factors justify imposing a variant sentence and

to its determination regarding the extent of any variance. Id. at

473-74. “Even if we would have reached a different sentencing

result on our own, this fact alone is ‘insufficient to justify

reversal of the district court.’” Id. at 474 (quoting Gall, 128

St. Ct. at 597).

At the sentencing hearing, the district court

appropriately treated the Guidelines as advisory, considered the

relevant factors under § 3553(a), and sentenced Flores at the

bottom of the properly calculated Guidelines range. Flores has

failed to demonstrate his sentence is either procedurally or

substantively unreasonable, especially in light of the fact that he

was sentenced at the bottom of the Guidelines range and there was

no argument at his sentencing hearing for a downward variance.

Therefore, we find that the sentence imposed by the district court

was reasonable and should be affirmed.

In accordance with Anders, we have reviewed the record in

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

therefore affirm Flores’ conviction and sentence. This court

requires counsel to inform his client, in writing, of his right to

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

If the 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.
9

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