UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4057

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JORGE MAURICCIO VASQUEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,

Chief District Judge. (3:06-cr-00147)

Submitted: December 19, 2007 Decided: January 11, 2008

Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Kimberly Y. Best, THE BEST LAW FIRM, PLLC, Charlotte, North

Carolina, for Appellant. Gretchen C. F. Shappert, United States

Attorney, Adam Morris, Assistant United States Attorney, Charlotte,

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Jorge Vasquez pled guilty without a plea agreement to

conspiracy to possess with intent to distribute and possession with

intent to distribute at least five kilograms of a mixture and

substance containing a detectable amount of cocaine, in violation

of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846 (2000). The district

court sentenced Vasquez to concurrent terms of ten years’

imprisonment, which was the statutory mandatory minimum punishment.

See 21 U.S.C. § 841(b)(1) (2000). Vasquez timely appealed. We

affirm.

Vasquez initially contends his guilty plea was not

knowing and voluntary, because he claims he never agreed to the

Government’s factual basis demonstrating he possessed at least five

kilograms of a mixture and substance containing a detectable amount

of cocaine. Vasquez raised this contention at the sentencing

hearing; although Vasquez never formally moved to withdraw his

guilty plea, the district court stated it would deny such a motion

to the extent Vasquez sought this relief. 

A defendant does not have an absolute right to withdraw

a guilty plea, United States v. Moore, 931 F.2d 245, 248 (4th Cir.

1991), and we find no abuse of discretion in the court’s Fed. R.

Crim. P. 11 and sentencing hearings. See United States v.

Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). Vasquez was advised

he faced a statutory mandatory minimum of ten years’ imprisonment
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on both counts, and Vasquez indicated he understood the district

court would impose a sentence within the statutory range of ten

years to life imprisonment. Thus, we conclude Vasquez knowingly

and voluntarily entered his guilty plea, with an understanding of

its consequences. See United States v. Wood, 378 F.3d 342, 349

(4th Cir. 2004).

Vasquez also contends the district court erred in

sentencing him to ten years’ imprisonment, notwithstanding the

statutory mandatory minimum of that length and the validity of his

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

we review a sentence for unreasonableness. United States v.

Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). A sentencing court

is no longer bound by the range prescribed by the advisory

sentencing guidelines. United States v. Green, 436 F.3d 449,

455-56 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006); Hughes,

401 F.3d at 546. In determining the sentence, however, courts are

still required to calculate and consider the guidelines range and

the factors set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.

2006). Green, 436 F.3d at 455-56. “[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, 127 S. Ct. 2456, 2462-69 (2007) (upholding

application of presumption of reasonableness to within-guidelines

sentence). 
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The district court appropriately held Vasquez responsible

for at least five kilograms of cocaine. See Chapman v. United

States, 500 U.S. 453, 456 (1991) (holding weight of drug includes

net weight of drug plus any dilutant, cutting agent or carrier

medium). Furthermore, the district court correctly determined

Vasquez had more than one criminal history point, making him

ineligible for a reduction below the statutory mandatory minimum.

See U. S. Sentencing Guidelines Manual § 5C1.2(a)(1) (2006). The

court sentenced Vasquez within the properly calculated sentencing

guidelines range, and we therefore conclude the sentence was

reasonable.

Accordingly, we affirm Vasquez’s convictions and

sentence. 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