United States v. Valderrama ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4926
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSE MARIA BELTRAN VALDERRAMA, a/k/a Chema,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:07-cr-00200-NCT-1)
Submitted: February 25, 2010 Decided: March 18, 2010
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Sandra Jane Hairston, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Maria Beltran Valderrama 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. §§ 841(b)(1)(A), 846 (2006). The district court
calculated Valderrama’s Guidelines range at 210 to 262 months’
imprisonment, see U.S. Sentencing Guidelines Manual (“USSG”)
(2007 & Supp. 2008), and sentenced Valderrama to 235 months’
imprisonment. 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 sentencing Valderrama.
Valderrama has filed a pro se supplemental brief, challenging
the procedural reasonableness of his sentence. We affirm.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
review. Because Valderrama did not move in the district court
to withdraw his guilty plea, the adequacy of the Fed. R. Crim.
P. 11 hearing is reviewed for plain error. See United States v.
Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Our review of the
transcript of the plea hearing leads us to conclude that the
district court substantially complied with the mandates of Rule
11 in accepting Valderrama’s guilty plea and that the court’s
omissions did not affect Valderrama’s substantial rights.
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Critically, the transcript reveals that the district court
ensured the plea was supported by an independent factual basis
and that Valderrama entered the plea voluntarily and with an
understanding of the consequences. See United States v.
DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991).
Accordingly, we discern no plain error.
Turning to Valderrama’s sentence, we review it under
an abuse-of-discretion standard. Gall v. United States, 552
U.S. 38, 41 (2007). In conducting this review, we “must first
ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines 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.” Id. at 51. “When rendering a sentence, the district
court must make an individualized assessment based on the facts
presented,” applying the “relevant § 3553(a) factors to the
specific circumstances of the case before it.” United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation
marks and emphasis omitted). The court must also “state in open
court the particular reasons supporting its chosen sentence” and
“set forth enough to satisfy” this court that it has “considered
the parties’ arguments and has a reasoned basis for exercising
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[its] own legal decisionmaking authority.” Id. (internal
quotation marks omitted).
If the sentence is free from procedural error, we then
consider the substantive reasonableness of the sentence,
“tak[ing] into account the totality of the circumstances.”
Gall, 552 U.S. at 51. Even if we would have imposed a different
sentence, “this fact alone is ‘insufficient to justify reversal
of the district court.’” United States v. Pauley, 511 F.3d 468,
474 (4th Cir. 2007) (quoting Gall, 552 U.S. at 51). This court
presumes on appeal that a sentence within a properly calculated
Guideline range is reasonable. See United States v. Allen, 491
F.3d 178, 193 (4th Cir. 2007).
Valderrama’s first claim challenges the district
court’s calculation of his base offense level on the basis that
the court erred in relying on the drug quantity included in the
presentence report (“PSR”). Under USSG § 1B1.3(a)(1)(B), in
determining the proper base offense level to apply to a
defendant involved in a drug conspiracy, the defendant is
responsible not only for his own acts, but for all “reasonably
foreseeable” acts of his co-conspirators taken in furtherance of
the joint criminal activity. See United States v. Randall, 171
F.3d 195, 210 (4th Cir. 1999). If the district court relies on
the drug quantity included in the PSR, the defendant bears the
burden of establishing that the information is incorrect.
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Id. at 210-11. Because Valderrama did not object below, the
district court’s determination of the relevant drug quantity
attributable to him is reviewed for plain error. United
States v. White, 405 F.3d 208, 215 (4th Cir. 2005).
Our review of the record leads us to conclude that the
district court did not err in determining the drug quantity
attributable to Valderrama, as the PSR indicates that one of his
co-conspirators directed another to traffic cocaine from North
Carolina to Virginia. Valdrerrama offers no reason why the
facts in the PSR should not be accepted as true. Accordingly,
we discern no plain error.
Next, both counsel and Valderrama question whether the
district court erred in its application of the two-level
enhancement for possession of a firearm. According to USSG
§ 2D1.1(b)(1), a district court is to increase a defendant’s
base offense level two levels “[i]f a dangerous weapon
(including a firearm) was possessed.” USSG § 2D1.1(b)(1). “The
adjustment should be applied if the weapon was present, unless
it is clearly improbable that the weapon was connected with the
offense.” USSG § 2D1.1(b)(1), cmt. n.3 (emphasis added). The
enhancement is proper when “the weapon was possessed in
connection with drug activity that was part of the same course
of conduct or common scheme as the offense of conviction.”
United States v. Manigan, 592 F.3d 621, 628-29 (4th Cir. 2010)
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(internal quotation marks omitted). We review the district
court’s application of this enhancement for clear error. See
United States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001).
Our review of the sentencing transcript leads us to conclude
that the district court did not clearly err in applying the
enhancement, as the testimony indicates that the firearm at
issue was recovered from a residence where members of the
conspiracy furthered their drug trafficking offenses.
Valderrama also questions whether the district court
erred in enhancing his offense level three levels under USSG
§ 3B1.1(b) for his role in the offense. A defendant qualifies
for a three-level enhancement if he “was a manager or supervisor
(but not an organizer or leader) and the criminal activity
involved five or more participants or was otherwise extensive.”
USSG § 3B1.1(b). “Leadership over only one other participant is
sufficient as long as there is some control exercised.” United
States v. Rashwan, 328 F.3d 160, 166 (4th Cir. 2003). Because
Valderrama did not object to the district court’s application of
the enhancement, Valderrama’s challenge is reviewed for plain
error. White, 405 F.3d at 215. After reviewing the PSR, we
conclude that it was sufficient to establish that Valderrama was
a manager of criminal activity that involved over five
participants. The district court properly applied the role
enhancement.
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Further, we conclude that the district court did not
otherwise commit procedural error in imposing Valderrama’s
sentence. The district court made an individualized assessment
of relevant sentencing factors, and counsel and Valderrama fail
to overcome the presumption of reasonableness afforded his
within-Guidelines sentence. We therefore conclude that the
district court did not abuse its discretion in imposing the
sentence.
We therefore affirm the district court’s judgment.
This court requires that counsel inform Valderrama, in writing,
of the right to petition the Supreme Court of the United States
for further review. If Valderrama 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 Valderrama.
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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