United States v. Norberto Aguilar , 565 F. App'x 162 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4357
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NORBERTO RIVERA AGUILAR, a/k/a Beto,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:11-cr-00053-RLV-DCK-2)
Submitted: March 25, 2014 Decided: April 4, 2014
Before NIEMEYER, SHEDD, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Scott Gsell, LAW OFFICE OF SCOTT GSELL, Charlotte, North
Carolina, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Norberto Rivera Aguilar appeals his conviction and the
120-month sentence imposed by the district court following
Aguilar’s guilty plea to conspiracy to distribute and to possess
with intent to distribute five kilograms or more of cocaine and
fifty grams or more of a mixture or substance containing a
detectable amount of methamphetamine, in violation of 21 U.S.C.
§§ 841(b)(1)(A), (b)(1)(B), and 846 (2012). Aguilar’s counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), asserting that, in his opinion, there are no meritorious
issues for appeal, but questioning whether the district court
erred by applying a four-level enhancement under U.S. Sentencing
Guidelines Manual § 3B1.1(a) (2012) for Aguilar’s role as an
organizer or leader of the criminal activity. In his pro se
supplemental brief, Aguilar challenges his sentence and the
validity of his guilty plea. We affirm.
Because Aguilar did not move in the district court to
withdraw his guilty plea, we review the Fed. R. Crim. P. 11
hearing for plain error. United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002). “[T]o satisfy the plain error
standard, [Aguilar] must show: (1) an error was made; (2) the
error is plain; and (3) the error affects substantial rights.”
United States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir.
2009). Our review of the record leads us to conclude that the
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district court substantially complied with Rule 11, and that
Aguilar’s guilty plea was knowing and voluntary.
Turning to Aguilar’s sentencing claims, we review a
sentence for abuse of discretion. Gall v. United States, 552
U.S. 38, 51 (2007). This review entails appellate consideration
of both the procedural and substantive reasonableness of the
sentence. Id.Aguilar challenges the four-level enhancement the
district court imposed under USSG § 3B1.1(a) for his role as an
organizer or leader of the conspiracy. The district court’s
determination that a defendant is an organizer or leader in the
offense is a factual finding reviewed for clear error. United
States v. Cameron, 573 F.3d 179, 184 (4th Cir. 2009); United
States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002). To qualify
for a four-level increase under USSG § 3B1.1(a), a defendant
must have been “an organizer or leader of a criminal activity
that involved five or more participants or was otherwise
extensive. Id.
Aguilar specifically pled guilty to Count One of the
indictment, that charged a drug trafficking conspiracy
specifically listing five individuals. One of those individuals
was Aguilar’s primary cocaine supplier and the others were
couriers for Aguilar and acted at his direction. Thus, the
criminal activity involved at least five participants and
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Aguilar exercised authority over several of them. We conclude
that the district court did not clearly err by concluding that
Aguilar was a leader or organizer of the criminal activity;
accordingly, the four-level increase under § 3B1.1(a) was
appropriate. We further conclude that Aguilar was not entitled
to a reduction for a mitigating role in the offense and that his
sentence was procedurally and substantively reasonable.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Aguilar in writing of
his right to petition the Supreme Court of the United States for
further review. If Aguilar 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 Aguilar. 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 the
decisional process.
AFFIRMED
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