UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4540

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HERBER ALEXSANDER GONZALES-ESCOBAR,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. N. Carlton Tilley, 

Jr., Senior District Judge. (1:13-cr-00346-NCT-1)

Submitted: July 23, 2015 Decided: July 27, 2015

Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Diane K. Jones McVay, JONES MCVAY LAW FIRM, PLLC, Dallas, Texas 

for Appellant. Frank Joseph Chut, Jr., Assistant United States

Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Herber Gonzales-Escobar appeals his conviction and twentythree-month sentence following his guilty plea to theft of 

government property and aggravated identity theft, in violation of 

18 U.S.C. §§ 641, 1028A (2012). Gonzales-Escobar’s counsel has 

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

(1967), certifying that there are no meritorious grounds for appeal 

but questioning whether the district court erred in denying his 

request for a downward variance and whether counsel was 

ineffective. Gonzales-Escobar was advised of his right to file a 

pro se supplemental brief but did not file one. We affirm.

We review Gonzales-Escobar’s sentence for reasonableness, 

applying an abuse-of-discretion standard. Gall v. United States, 

552 U.S. 38, 41 (2007). This requires consideration of both the 

procedural and substantive reasonableness of the sentence. Id. at 

51. We first assess whether the district court properly calculated 

the advisory Guidelines range, considered the factors set forth at 

18 U.S.C. § 3553(a) (2012), analyzed any arguments presented by 

the parties, and sufficiently explained the selected sentence. 

Id. at 49-51. If we find no procedural error, we review the 

sentence for substantive reasonableness, “tak[ing] into account 

the totality of the circumstances.” Id. at 51. “Any sentence 

that is within or below a properly calculated Guidelines range is 

presumptively reasonable.” United States v. Louthian, 756 F.3d 
3

295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014). The 

defendant bears the burden to rebut this presumption “by showing 

that the sentence is unreasonable when measured against the . . . 

§ 3553(a) factors.” Id. 

Gonzales-Escobar requested a downward variance based on

several mitigating circumstances, including his difficult 

upbringing, an overstated criminal history, and his acceptance of 

responsibility. The district court denied his request due to the 

seriousness of the offense. In light of the court’s explanation 

for denying Gonzales-Escobar’s variance request and its 

consideration of the relevant § 3553(a) factors, we conclude that

the sentence was procedurally reasonable. Moreover, GonzalesEscobar offers nothing to rebut the presumption of substantive 

reasonableness. 

Gonzales-Escobar next asserts that counsel was ineffective 

for failing to request that he be placed in the Fast Track program 

for deportable aliens. We conclude that this claim is not 

cognizable on direct appeal because ineffectiveness does not 

conclusively appear on the face of the record. United States v. 

Benton, 523 F.3d 424, 435 (4th Cir. 2008).

In accordance with Anders, we have reviewed the entire record 

in this case and found no meritorious issues for appeal. 

Accordingly, we affirm the district court’s judgment. This court 

requires that counsel inform Gonzales-Escobar, in writing, of the 
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right to petition the Supreme Court of the United States for 

further review. If Gonzales-Escobar 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 Gonzales-Escobar. 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