                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4184


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARIELENA LEDY MARTINEZ,

                Defendant - Appellant.



                            No. 09-4185


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARIELENA LEDY MARTINEZ,

                Defendant - Appellant.



Appeals from the United States District Court for the District
of South Carolina, at Spartanburg.    Henry F. Floyd, District
Judge. (7:05-cr-00253-HFF-4; 7:08-cr-00112-HFF-2)


Submitted:   May 24, 2010                 Decided:   June 18, 2010


Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Lora E. Collins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Regan Alexandra Pendleton,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

           In      February       2006,           the        district       court        sentenced

Marielena Ledy Martinez to four years of probation after she

pleaded    guilty        to    being        an        accessory       after    the       fact    to

possession    with       intent   to    distribute             fifty    grams       or    more    of

cocaine base, in violation of 18 U.S.C. § 3 (2006).                                       In July

2008, Martinez pleaded guilty to conspiracy to murder a federal

law   enforcement        official       with          intent     to    retaliate         for     the

performance       of    official       duties,          in     violation      of     18    U.S.C.

§ 115(a)(1)(A)         (2006).         As    a        result    of    her     arrest       on    the

conspiracy charge, Martinez was charged with a violation of her

probation, which she admitted.                          The district court sentenced

Martinez     to    216    months       of        imprisonment         for     the    conspiracy

conviction, plus a consecutive term of eighteen months for her

probation violation.            Martinez appeals.                 Her attorney has filed

a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

raising four issues but stating that there are no meritorious

issues for appeal.            Martinez was informed of her right to file a

pro se supplemental brief but did not do so.                            We affirm in part,

vacate in part, and remand.

           In the Anders brief, counsel first questions whether

the district court complied with the requirements of Federal

Rule of Criminal Procedure 11.                          Prior to accepting a guilty

plea, a trial court, through colloquy with the defendant, must

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inform the defendant of, and determine that she understands, the

nature    of    the    charges        to    which    the    plea    is     offered,    any

mandatory      minimum       penalty,       the   maximum       possible    penalty    she

faces, and the various rights she is relinquishing by pleading

guilty.       Fed. R. Crim. P. 11(b).               The court also must determine

whether there is a factual basis for the plea.                              Id.; United

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

purpose of the Rule 11 colloquy is to ensure that the plea of

guilt is entered into knowingly and voluntarily.                                See United

States v. Vonn, 535 U.S. 55, 58 (2002).

              Because Martinez did not move in the district court to

withdraw her guilty plea, any error in the Rule 11 hearing is

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

517, 525 (4th Cir. 2002).              “To establish plain error, [Martinez]

must show that an error occurred, that the error was plain, and

that    the    error     affected       [her]       substantial     rights.”        United

States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007).                             Even if

Martinez satisfies these requirements, “correction of the error

remains    within      our    discretion,         which    we    should    not    exercise

. . .     unless      the     error        seriously      affect[s]       the    fairness,

integrity or public reputation of judicial proceedings.”                               Id.

(internal quotation marks and citation omitted).                            Because our

review of the transcript reveals substantial compliance with the



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requirements          of     Rule       11,   we    conclude       that     Martinez       pleaded

guilty knowingly and voluntarily.

                Counsel      next       questions        whether    the     district       court’s

sentence        for   the     conspiracy           conviction       was     reasonable.          We

review      a    sentence         for    reasonableness,           applying        an    abuse   of

discretion standard.                 Gall v. United States, 552 U.S. 38, 51

(2007); see also United States v. Layton, 564 F.3d 330, 335 (4th

Cir.), cert. denied, 130 S. Ct. 290 (2009).                                  In so doing, we

first examine the sentence for “significant procedural error,”

including “failing to calculate (or improperly calculating) the

[g]uidelines          range,        treating       the       [g]uidelines      as       mandatory,

failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors,

selecting        a    sentence          based      on    clearly      erroneous         facts,   or

failing to adequately explain the chosen sentence.”                                     Gall, 552

U.S.   at       51.        This     court     then      “‘consider[s]        the     substantive

reasonableness          of    the       sentence        imposed.’”          United      States    v.

Evans, 526 F.3d 155, 161 (4th Cir.) (quoting Gall, 552 U.S. at

51), cert. denied, 129 S. Ct. 476 (2008).                               If the sentence is

within      the       guidelines          range,        we    apply     a     presumption        of

reasonableness.             United States v. Green, 436 F.3d 449, 457 (4th

Cir. 2006); see Rita v. United States, 551 U.S. 338, 346-59

(2007)          (upholding           presumption              of      reasonableness             for

within-guidelines sentence).



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              Moreover,          a     district           court      must      conduct      an

“individualized          assessment”       of       the    particular    facts       of   every

sentence, whether the court imposes a sentence above, below, or

within the guidelines range.                  United States v. Carter, 564 F.3d

325,   330     (4th       Cir.       2009).          While     “[t]his      individualized

assessment need not be elaborate or lengthy, . . . it must

provide a rationale tailored to the particular case at hand and

adequate to permit meaningful appellate review.”                               Carter, 564

F.3d at 330 (internal quotation marks and citation omitted).                                In

addition, “[w]here [the parties] present[] nonfrivolous reasons

for imposing a . . . sentence [outside the advisory guidelines

range,]   .    .    .    a    district     judge          should    address    the    party’s

arguments     and       explain      why   he    has      rejected     those    arguments.”

Carter, 564 F.3d at 328 (internal quotation marks and citation

omitted).

              As long as a defendant “draw[s] arguments from § 3553

for a sentence different than the one ultimately imposed, an

aggrieved party sufficiently alerts the district court of its

responsibility           to      render         an        individualized        explanation

addressing      those        arguments,       and      thus    preserves       its    claim.”

United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010).                                 When

the claim is preserved, this court reviews the claim for an

abuse of discretion.                 Id. at 576, 579.              If the district court

abused its discretion, this court will “reverse unless . . . the

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error was harmless.”              Id. at 576.                Where the district court

commits error, the Government bears the burden of demonstrating

that the error was harmless.                  Id. at 585.

            Here,        Martinez      preserved            this    issue    for    appellate

review as she requested a sentence below the advisory guidelines

range.      The        district       court         failed     to     address       Martinez’s

nonfrivolous       reasons      for       a    below-guidelines            sentence    and    to

adequately explain the chosen sentence.                              Furthermore, as the

Government elected not to file a brief, it has failed to carry

its   burden      of     demonstrating           that       the     error    was    harmless.

Accordingly,       Martinez’s        sentence          is    procedurally       unreasonable

and must be vacated.

            Counsel        next      questions         whether       the    district    court

erred in revoking Martinez’s probation.                           Appellate courts review

a district court’s decision to revoke probation for abuse of

discretion.        See    Burns      v.       United    States,       287    U.S.    216,    222

(1932); United States v. Bujak, 347 F.3d 607, 609 (6th Cir.

2003); Gov’t of the Virgin Islands v. Martinez, 239 F.3d 293,

301   (3d   Cir.       2001).        The      district       court    need     only    find   a

violation    of    a     term   of    probation         by    a     preponderance      of    the

evidence.      Bujak, 347 F.3d at 609.                  Here, Martinez admitted that

she violated the terms of her probation and pleaded guilty to

the new criminal conduct that formed the basis for the charged



                                                7
violation.          We therefore conclude that the district court did

not abuse its discretion in revoking Martinez’s probation.

               Finally,           counsel         questions             whether       the     district

court’s       sentence        upon         revocation           of      probation      was        plainly

unreasonable.              Upon    a       finding        of   a     probation       violation,         the

district court may revoke probation and resentence the defendant

to any sentence within the statutory maximum for the original

offense.       18 U.S.C. § 3565(a) (2006); United States v. Schaefer,

120    F.3d    505,        507    (4th       Cir.     1997).             This   court       “review[s]

probation           revocation             sentences,           like         supervised           release

revocation          sentences,             to    determine              if    they     are        plainly

unreasonable.”             United States v. Moulden, 478 F.3d 652, 656 (4th

Cir. 2007).          We first assess the sentence for unreasonableness,

“follow[ing]           generally                the       procedural            and      substantive

considerations             that       we     employ        in      our       review    of     original

sentences.”          United States v. Crudup, 461 F.3d 433, 438-39 (4th

Cir.   2006).          However,            “[t]his        initial        inquiry      takes       a    more

‘deferential appellate posture concerning issues of fact and the

exercise       of      discretion’               than          reasonableness           review         for

guidelines          sentences.”              Moulden,           478     F.3d    at     656    (quoting

Crudup,       461     F.3d       at    438).          Only         if    a    sentence       is       found

procedurally          or     substantively                unreasonable          will    we        “decide

whether the sentence is plainly unreasonable.”                                   Crudup, 461 F.3d

at 438.

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              Although       a       district   court      must   consider   the   policy

statements in Chapter Seven of the sentencing guidelines along

with the statutory requirements of 18 U.S.C. § 3553(a), “‘the

court ultimately has broad discretion to revoke its previous

sentence and impose a term of imprisonment up to the statutory

maximum.’”         Crudup, 461 F.3d at 439 (quoting United States v.

Lewis, 424 F.3d 239, 244 (2d Cir. 2005)) (internal quotation

marks omitted); see also Moulden, 478 F.3d at 656-57.                              Such a

sentence      is    substantively          reasonable        if   the   district       court

stated a proper basis for concluding that the defendant should

receive the sentence imposed.                   Crudup, 461 F.3d at 440.                “The

court    must      provide       a    statement       of   reasons   for   the   sentence

imposed,      as   with   the         typical   sentencing        procedure,     but    this

statement ‘need not be as specific as has been required’ for

departing from a traditional guidelines range.”                             Moulden, 478

F.3d at 657 (quoting Crudup, 461 F.3d at 438).                             A sentence is

plainly unreasonable if it is clearly or obviously unreasonable.

Id. at 439.        We have thoroughly reviewed the record and conclude

that    the   district       court       did    not    commit     reversible     error   in

sentencing Martinez on the revocation of probation charge.

              We have examined the entire record in accordance with

the requirements of Anders and have found no other meritorious

issues for appeal.               We therefore affirm Martinez’s convictions,

affirm the sentence imposed after revocation of probation, and

                                                9
vacate the sentence imposed for the conspiracy conviction and

remand    for    resentencing.          This      court       requires      that    counsel

inform    Martinez,       in    writing,     of    the    right        to   petition    the

Supreme     Court    of   the    United    States       for     further      review.     If

Martinez 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

Martinez.       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 IN PART,
                                                                        VACATED IN PART,
                                                                            AND REMANDED




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