                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 19-4274


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

ERICK EDUARDO TURCIOS-LAZO, a/k/a Erick E. Turios-Lazo, a/k/a Eric
Turcios-Lazo,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Roger W. Titus, Senior District Judge. (8:08-cr-00216-DKC-1)


Submitted: December 20, 2019                                      Decided: January 17, 2020


Before NIEMEYER, FLOYD, and QUATTLEBAUM, Circuit Judges


Affirmed by unpublished per curiam opinion.


Gregory Dolin, UNIVERSITY OF BALTIMORE SCHOOL OF LAW, Baltimore,
Maryland, for Appellant. Jonathan Scott Tsuei, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Erick Eduardo Turcios-Lazo pled guilty, pursuant to a plea agreement, to illegal

reentry into the United States by a previously deported aggravated felon, in violation of 8

U.S.C. § 1326(a), (b)(2) (2006), and was sentenced to 48 months in prison. Counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), indicating that he has

identified no meritorious issues for appeal but discussing the constitutionality and

reasonableness of Turcios-Lazo’s sentence, whether ineffective assistance of counsel

conclusively appears on the record, and whether Turcios-Lazo conceded all of the elements

of the offense to which he pled guilty. Turcios-Lazo has not filed a pro se supplemental

brief despite receiving notice of his right to do so, and the Government has declined to file

a response brief. We affirm.

       First, counsel correctly concedes that Turcios-Lazo cannot raise a meritorious claim

under United States v. Mastrapa, 509 F.3d 652, 656-61 (4th Cir. 2007) (vacating conviction

because defendant protested having the requisite mens rea for the crime to which he was

pleading guilty and, thus, there was an insufficient factual basis for guilty plea). Turcios-

Lazo did not challenge the Fed. R. Crim. P. 11 proceedings in the district court and, thus,

we review any such challenge for plain error. See United States v. Martinez, 277 F.3d 517,

524-27 (4th Cir. 2002). Because Turcios-Lazo admitted to the factual basis supporting the

crime to which he was pleading guilty, we discern no error, let alone plain error, in the

district court’s decision to accept Turcios-Lazo’s guilty plea.

       Next, we review Turcios-Lazo’s sentence for reasonableness, applying “a

deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007).

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This review requires consideration of both the procedural and substantive reasonableness

of the sentence. United States v. Lymas, 781 F.3d 106, 111 (4th Cir. 2015). In determining

procedural reasonableness, we consider whether the district court properly calculated the

defendant’s advisory Sentencing Guidelines range, gave the parties an opportunity to argue

for an appropriate sentence, considered the 18 U.S.C. § 3553(a) (2018) sentencing factors,

and sufficiently explained the selected sentence. Id. at 111-12. After determining that the

sentence is procedurally reasonable, we consider the substantive reasonableness of the

sentence, “tak[ing] into account the totality of the circumstances[.]” Gall, 552 U.S. at 51.

“Any sentence that is within or below a properly calculated Guidelines range is

presumptively reasonable.” United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).

       Our review of the record reveals no procedural or substantive errors. The district

court accurately calculated Turcios-Lazo’s Guidelines range, afforded the parties an

opportunity to argue regarding an appropriate sentence and gave Turcios-Lazo the

opportunity to allocute, imposed a within-Guidelines range sentence, and thoroughly

explained the reasons for the imposed sentence and why the court rejected counsel’s

argument for a below-Guidelines range sentence. We therefore conclude that Turcios-Lazo

fails to rebut the presumption of reasonableness we afford his sentence. *

       As to counsel’s discussion regarding ineffective assistance of counsel, counsel

correctly recognizes that we do not consider ineffective assistance claims on direct appeal


       *
         We agree with counsel that neither Johnson v. United States, 135 S. Ct. 2551
(2015), nor Sessions v. Dimaya, 138 S. Ct. 1204 (2018), rendered Turcios-Lazo’s sentence
unconstitutional.

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“[u]nless an attorney’s ineffectiveness conclusively appears on the face of the record[.]”

United States v. Faulls, 821 F.3d 502, 507-08 (4th Cir. 2016). Indeed, a defense attorney

should be given an opportunity to address the reasons for his or her action or inaction, and

the record should be more fully developed, before addressing this issue. See United States

v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). Our review of the record identified no

conclusive evidence of ineffective assistance. Thus, any ineffective assistance claim

Turcios-Lazo perceives “should be raised, if at all, in a 28 U.S.C. § 2255 [(2012)] motion.”

Faulls, 821 F.3d at 508. We express no opinion regarding the merits of any possible

ineffective assistance claims.

       In accordance with Anders, we have reviewed the entire record and have found no

meritorious grounds for appeal. We therefore affirm the district court’s judgment. This

court requires that counsel inform Turcios-Lazo, in writing, of his right to petition the

Supreme Court of the United States for further review. If Turcios-Lazo requests that a

petition be filed, but counsel believes that such a petition would be frivolous, then counsel

may move this court for leave to withdraw from representation. Counsel’s motion must

state that a copy thereof was served on Turcios-Lazo. 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 in the decisional process.

                                                                                AFFIRMED




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