                         CORRECTED OPINION

                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 12-4091


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

GABRIEL CHAVEZ-VARGAS,

                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. (1:11-cr-00177-NCT-1)


Submitted:   September 21, 2012           Decided:   November 5, 2012

             Corrected Opinion Filed:    November 5, 2012


Before KING, DIAZ, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Stacey D. Rubain, QUANDER & RUBAIN, P.A., Winston-Salem, North
Carolina, for Appellant.   Randall Stuart Galyon, OFFICE OF THE
UNITED   STATES  ATTORNEY,   Greensboro,  North  Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Gabriel Chavez-Vargas (“Vargas”) pled guilty, pursuant

to   a   written    plea   agreement,    to   one   count    of     conspiracy    to

distribute five kilograms or more of cocaine, in violation of

21 U.S.C.A. § 841(a)(1), (b)(1)(A) (West 2006 & Supp. 2012) and

21   U.S.C.     § 846   (2006).    The   district    court       determined   that

Vargas was eligible for relief under the safety valve, 18 U.S.C.

§ 3553(f) (2006), calculated his Guidelines range under the U.S.

Sentencing Guidelines Manual (2011) at seventy to eighty-seven

months’    imprisonment,     and   sentenced      Vargas    to    eighty   months’

imprisonment.       On appeal, counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), stating that there

are no meritorious issues for appeal, but questioning whether

the district court abused its discretion in imposing sentence.

Vargas has filed a pro se supplemental brief raising several

issues.       We affirm.

               This court reviews Vargas’ sentence for reasonableness

“under    a    deferential   abuse-of-discretion         standard.”        Gall   v.

United States, 552 U.S. 38, 41, 51 (2007).                  In conducting this

review, this court considers whether the district court properly

calculated the defendant’s advisory Guidelines range, gave the

parties an opportunity to argue for an appropriate sentence,

considered the 18 U.S.C. § 3553(a) factors, selected a sentence

based     on    clearly    erroneous     facts,     or     failed     to   explain

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sufficiently         the       selected       sentence.             Id.    at    49-51.        “When

rendering      a         sentence,       the       district          court       must     make    an

individualized assessment based on the facts presented,” United

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal

quotation      marks       and       emphasis       omitted),        and       must   “adequately

explain the chosen sentence to allow for meaningful appellate

review and to promote the perception of fair sentencing.”                                      Gall,

552    U.S.    at        50.         “When     imposing         a     sentence        within     the

Guidelines, however, the [district court’s] explanation need not

be     elaborate          or        lengthy        because      [G]uidelines              sentences

themselves         are    in    many    ways       tailored         to    the    individual      and

reflect approximately two decades of close attention to federal

sentencing policy.”                 United States v. Hernandez, 603 F.3d 267,

271 (4th Cir. 2010) (internal quotation marks omitted).

              If     the       sentence       is    free   of       significant          procedural

error, we review it for substantive reasonableness, “tak[ing]

into account the totality of the circumstances.”                                  Gall, 552 U.S.

at    51.     If     the       sentence       is    within      the       properly       calculated

Guidelines     range,          we    apply     a    presumption           on    appeal    that   the

sentence      is         substantively         reasonable.                 United       States    v.

Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).                                         Such a

presumption is rebutted only if the defendant shows “that the

sentence      is    unreasonable          when      measured         against      the     § 3553(a)



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factors.”           United States v. Montes-Pineda, 445 F.3d 375, 379

(4th Cir. 2006) (internal quotation marks omitted).

                  In this case, the district court correctly calculated

and    considered         the    advisory      Guidelines            range,        heard    argument

from counsel and allocution from Vargas.                                 The court explained

that        the        within-Guidelines            sentence            of        eighty        months’

imprisonment            was     warranted          in     light        of      the       nature       and

circumstances            of     Vargas’        offense           and         his     history          and

characteristics.              Neither counsel nor Vargas offers any grounds

to rebut the presumption on appeal that the within-Guidelines

sentence is substantively reasonable.                            Accordingly, we conclude

that       the     district      court       did        not     abuse       its     discretion        in

sentencing Vargas.

                  In accordance with Anders, we have reviewed the issues

raised      in     Vargas’      pro    se    supplemental              brief       and    the   entire

record in this case and have found no meritorious issues for

appeal. *        Because Vargas did not move to withdraw his guilty plea

in    the    district         court,    we    review           the     Fed.    R.    Crim.       P.   11

colloquy         for    plain    error      only.             United    States       v.    Martinez,

       *
       To the extent that Vargas asserts claims of ineffective
assistance of counsel, we find them inappropriate for resolution
on direct appeal.    Because ineffectiveness of counsel is not
conclusively established by the record, Vargas must assert such
claims, if at all, in an appropriate motion for post-conviction
relief pursuant to 28 U.S.C.A. § 2255 (West Supp. 2012). United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997).



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277 F.3d     517,    524-26     (4th    Cir.   2002).      To   demonstrate      plain

error, a defendant must show: (1) there was error; (2) the error

was plain; and (3) the error affected his substantial rights.

United States v. Olano, 507 U.S. 725, 732 (1993).                      In the guilty

plea context, a defendant meets his burden to establish that a

plain   error       affected     his     substantial      rights      by   showing   a

reasonable probability that he would not have pled guilty but

for the Rule 11 omission.              United States v. Massenburg, 564 F.3d

337, 343 (4th Cir. 2009).                The record contains no suggestion

that, but for any error by the district court at the Rule 11

colloquy,     Vargas     would     not    have     entered      his    guilty    plea.

Accordingly, we conclude that, because any error by the district

court   in    conducting        the     colloquy    did    not     affect       Vargas’

substantial rights, the district court did not plainly err in

accepting his guilty plea.

             We     therefore    affirm     the    district     court’s     judgment.

This court requires that counsel inform Vargas, in writing, of

the right to petition the Supreme Court of the United States for

further review.         If Vargas 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 Vargas.



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            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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