United States v. Elsa Montecinos , 454 F. App'x 201 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4393
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ELSA G. MONTECINOS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:08-cr-00590-CMC-17)
Submitted: October 28, 2011 Decided: November 18, 2011
Before WILKINSON, MOTZ, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Guy J. Vitetta, Charleston, South Carolina, for Appellant. Mark
C. Moore, Stanley Duane Ragsdale, Assistant United States
Attorneys, James Chris Leventis, Jr., OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Elsa G. Montecinos of conspiracy to
possess with intent to distribute and to distribute cocaine,
cocaine base, and marijuana, 21 U.S.C. §§ 841(a)(1), (b)(1)(A),
(b)(1)(D), 846 (2006), and conspiracy to commit money
laundering, 18 U.S.C. § 1956(h) (2006). The district court
granted her motion for a downward variance and sentenced her to
160 months’ imprisonment. On appeal, Montecinos’ counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting that he has found no meritorious issues for
appeal, but questioning whether the sentencing court erred in
basing its factual findings regarding drug quantity on acquitted
conduct, causing Montecinos’ offense level to exceed that which
was authorized by the jury’s verdict. Although advised of her
right to file a pro se supplemental brief, Montecinos has not
done so. The Government declined to file a response. We
affirm.
Montecinos argues the district court’s factual finding
of drug quantity attributable to her based on acquitted conduct
increased her sentence beyond that which was authorized by the
jury’s verdict, in violation of her Fifth and Sixth Amendment
rights. “Sentencing judges may find facts relevant to
determining a Guidelines range by a preponderance of the
evidence, so long as that Guidelines sentence is treated as
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advisory and falls within the statutory maximum authorized by
the jury’s verdict.” United States v. Benkahla, 530 F.3d 300,
312 (4th Cir. 2008); see also United States v. Perry, 560 F.3d
246, 258–59 (4th Cir. 2009) (“It has long been established that
sentencing courts may consider acquitted conduct in establishing
drug amounts for the purpose of sentencing, so long as the
amounts are established by a preponderance of the evidence.”).
Here, the district court treated the Guidelines as advisory;
Montecinos was sentenced within the statutory maximum authorized
by the jury’s verdict; and the district court’s findings were
supported by a preponderance of the evidence. Accordingly, we
reject this argument.
In accordance with Anders, we have reviewed the entire
record in this case and conclude there are no meritorious issues
for appeal. We therefore affirm the judgment of the district
court. This court requires that counsel inform Montecinos, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Montecinos 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 Montecinos. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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