                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4867


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARCIAL LEDEZMA RICO,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:10-cr-00015-RLV-DCK-1)


Submitted:   May 31, 2012                     Decided:   June 5, 2012


Before KING, DUNCAN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Henderson Hill, Executive Director, FEDERAL DEFENDERS OF NORTH
CAROLINA, INC., Ross H. Richardson, First Assistant Federal
Defender, Charlotte, North Carolina, for Appellant. John George
Guise, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Marcial      Ledezma        Rico        appeals    the     seventy-five–month

sentence he received following his guilty plea to one count of

conspiracy          to     distribute         and        to     possess        with    intent   to

distribute              methamphetamine,            in        violation        of     21    U.S.C.

§§ 841(b)(1)(B),            846       (2006).          On     appeal,    Rico’s       counsel   has

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

(1967),        in   which        he   concludes         that    there    are     no   meritorious

issues for appeal but questions the substantive reasonableness

of Rico’s sentence.                   Rico was informed of his right to file a

supplemental pro se brief, but has not done so.                                  The Government

elected not to file a brief and does not seek to enforce the

plea agreement’s appeal waiver. ∗                       We affirm.

                When        reviewing           a           sentence       for        substantive

reasonableness,             we     take     into       account     “the     totality       of   the

circumstances.”             Gall v. United States, 552 U.S. 38, 51 (2007).

We   accord         a    sentence      within      a     properly-calculated           Sentencing

Guidelines          range    an       appellate         presumption       of    reasonableness.

See United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008).

Such       a   presumption            is   rebutted         only   by     showing      “that    the


       ∗
       Because the Government fails to assert the waiver as a bar
to the appeal, we may consider the issues raised by counsel and
conduct an independent review of the record pursuant to Anders.
United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).



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sentence is unreasonable when measured against the [18 U.S.C.A.]

§ 3553(a) [(West 2000 & Supp. 2011)] factors.”                               United States v.

Montes–Pineda,         445       F.3d    375,       379    (4th      Cir.    2006)       (internal

quotation marks omitted).

            In       this        case,        the       district       court      calculated        a

Guidelines      range       of    100     to    125       months’      imprisonment.            Both

parties advocated for a downward variance, primarily based on

Rico’s cooperation with the authorities; however, the parties

disagreed as to the extent that was warranted.                                     The district

court    ultimately         granted       a     downward         variance        and     imposed    a

seventy-five-month            sentence,             a    sentence       greater        than     that

requested       by    Rico,       but     less          than    that       requested       by   the

Government.          The district court noted Rico’s extensive efforts

to cooperate and the safety risks he undertook in doing so.

However, the court was also concerned with the likelihood of

recidivism.           We     conclude         that       the    district         court    properly

analyzed     the      arguments          presented         by    Rico      and    appropriately

imposed     a     downward         variance             after    having        considered       the

mitigating circumstances raised by Rico.                                Taking into account

the    totality      of     the    circumstances               and   the    district       court’s

explicit consideration of Rico’s arguments, we can find no abuse

of    discretion,      and       so,     we    conclude         that    Rico’s      sentence       is

substantively reasonable.



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             In    accordance      with   Anders,        we    reviewed      the   entire

record in this case and found no meritorious claims.                          Therefore,

we affirm the district court’s judgment.                        This court requires

that counsel inform Rico, in writing, of the right to petition

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

Rico 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

Rico.       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




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