United States v. Sergio Reyna ( 2015 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 14-4663
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    SERGIO LOPEZ REYNA, a/k/a La Cra,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Raleigh.   James C. Dever, III,
    Chief District Judge. (5:13-cr-00205-D-1)
    Submitted:   April 13, 2015                   Decided:   May 26, 2015
    Before AGEE, WYNN, and DIAZ, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Elisa Cyre Salmon, SALMON & GILMORE, LLP, Lillington, North
    Carolina, for Appellant.     Thomas G. Walker, United States
    Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
    Assistant United States Attorney, Raleigh, North Carolina, for
    Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Sergio Lopez Reyna appeals the aggregate 171-month, within-
    Guidelines       sentence     imposed      following           his    guilty        pleas     to
    carjacking, in violation of 18 U.S.C. §§ 2119, 2 (2012), and
    brandishing a firearm in furtherance of a crime of violence, in
    violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), 2 (2012).                                      Reyna
    argues on appeal that the district court was required to hold an
    evidentiary       hearing     on    the      application         of     the      three-level
    leadership       enhancement,       clearly       erred     when       it     applied       this
    enhancement, clearly erred when it refused to apply a two-level
    reduction      for   acceptance       of     responsibility,               and   imposed       a
    substantively unreasonable sentence.                 We affirm.
    Reyna     first   challenges        the    district       court’s         failure      to
    conduct     an    evidentiary        hearing        on    his        objection        to    the
    leadership       enhancement.         Ordinarily,         we    review        the     district
    court’s denial of an evidentiary hearing at sentencing for abuse
    of discretion.       See United States v. Pologruto, 
    914 F.2d 67
    (5th
    Cir.   1990).        Issues    raised      for     the    first        time      on   appeal,
    however, are reviewed for plain error only.                          Henderson v. United
    States, 
    133 S. Ct. 1121
    , 1125, 1126 (2013); see Fed. R. Crim. P.
    52(b).      Although     the       parties       disagree      as     to    whether        Reyna
    preserved the issue, we need not resolve this dispute because we
    conclude the district court did not abuse its discretion.
    2
    “Where the reliability of evidence is an issue[,] the court
    should conduct an evidentiary hearing to determine the same.”
    United States v. Wilkinson, 
    590 F.3d 259
    , 269 (4th Cir. 2010)
    (internal alteration and quotation marks omitted).              While “the
    court must ensure that the parties have an adequate opportunity
    to present relevant information [on a disputed issue],” there is
    no affirmative requirement that the court allow live testimony.
    U.S. Sentencing Guidelines Manual § 6A1.3, cmt. (2013).                 After
    review of the record, we conclude Reyna was provided an adequate
    opportunity    to     present   information   relevant   to   the   disputed
    leadership enhancement, and we therefore discern no error.
    Next, Reyna argues that the district court clearly erred
    when   it   applied    the   three-level    leadership   enhancement.     We
    review sentences for reasonableness “under a deferential abuse-
    of-discretion standard.”           Gall v. United States, 
    552 U.S. 38
    , 41
    (2007).     This review entails appellate consideration of both the
    procedural and substantive reasonableness of the sentence.               
    Id. at 51.
         We first ensure that the district court committed no
    “significant procedural error,” including improper calculation
    of the Guidelines range, insufficient consideration of the 18
    U.S.C. § 3553(a) (2012) factors, and inadequate explanation of
    the sentence imposed.        
    Id. The district
    court’s imposition of a role adjustment is a
    factual determination reviewed for clear error.               United States
    3
    v. Kellam, 
    568 F.3d 125
    , 147-48 (4th Cir. 2009).              A three-level
    enhancement under USSG § 3B1.1(b) is warranted if “the defendant
    was a manager or supervisor (but not an organizer or leader) and
    the criminal activity involved five or more participants.”                  To
    qualify for such an enhancement, the defendant must have managed
    or supervised “one or more other participants.”               USSG § 3B1.1,
    cmt. n.2.       The enhancement is appropriate where the evidence
    demonstrates that the defendant “controlled the activities of
    other    participants”     or   “exercised   management    responsibility.”
    United States v. Slade, 
    631 F.3d 185
    , 190 (4th Cir. 2011).
    We conclude that the district court did not clearly err
    when it applied this enhancement.            Reyna chose the location for
    the carjacking; instructed a coconspirator how to get to the
    club    and   where   to   park;   and   directed   two   coconspirators    to
    approach the victim with him.
    Next, Reyna contends the district court should have applied
    a two-level reduction for acceptance of responsibility, arguing
    that the court erroneously considered that he denied personally
    possessing the firearm underlying the brandishing charge.                  The
    determination of whether a defendant merits an acceptance of
    responsibility adjustment is a factual issue and thus reviewed
    for clear error.       United States v. Burns, ___ F.3d ___, 
    2015 WL 615678
    , at *4 (4th Cir. Feb. 13, 2015).             “[T]he sentencing judge
    is in a unique position to evaluate a defendant’s acceptance of
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    responsibility,        and    thus     . . .     the     determination     of    the
    sentencing    judge     is    entitled    to    great    deference   on    review.”
    Elliott v. United States, 
    332 F.3d 753
    , 761 (4th Cir. 2003)
    (internal alteration and quotation marks omitted).                       This court
    may reverse the district court’s finding only when “left with
    the   definite    and    firm    conviction       that    a    mistake    has   been
    committed.”      United States v. Dugger, 
    485 F.3d 236
    , 239 (4th
    Cir. 2007) (internal quotation marks omitted).
    We    perceive     no    clear     error    in     the   district     court’s
    decision.     As the district court concluded, Reyna frivolously
    denied relevant conduct by denying possessing or brandishing a
    firearm during the carjacking.                The district court is permitted
    to consider a defendant’s denial of facts underlying a § 924(c)
    charge in deciding whether to grant the reduction.                       See United
    States v. Hargrove, 
    478 F.3d 195
    , 201 (4th Cir. 2007).
    Finally, Reyna contends that his sentence is substantively
    unreasonable.     If a sentence is procedurally reasonable, we then
    consider whether it is substantively reasonable, “taking into
    account the totality of the circumstances.”                    
    Gall, 552 U.S. at 51
    .   “Any sentence that is within or below a properly calculated
    Guidelines    range     is    presumptively      [substantively]      reasonable.
    Such a presumption can only be rebutted by showing that the
    sentence is unreasonable when measured against the 18 U.S.C.
    § 3553(a) factors.”           United States v. Louthian, 
    756 F.3d 295
    ,
    5
    306 (4th Cir.) (citation omitted), cert. denied, 
    135 S. Ct. 421
    (2014).
    We conclude that Reyna has failed to rebut the presumed
    reasonableness of his within-Guidelines sentence.           The district
    court weighed Reyna’s lack of a criminal history against the
    conduct underlying his convictions and concluded that a sentence
    within the Guidelines range was necessary to reflect the serious
    nature of the offense and to protect the public and provide
    general deterrence.
    Accordingly, we affirm the district court’s judgment.            We
    dispense   with   oral   argument   because   the   facts     and   legal
    contentions are adequately presented in the material before this
    court and argument will not aid the decisional process.
    AFFIRMED
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