United States v. Hernandez , 109 F. App'x 563 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4963
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FELIPE AURELIO HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, Chief
District Judge. (CR-02-30046)
Submitted: August 30, 2004 Decided: September 17, 2004
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frederick T. Heblich, Jr., FREDERICK T. HEBLICH, JR., P.C.,
Charlottesville, Virginia, for Appellant. John L. Brownlee, United
States Attorney, William F. Gould, Assistant United States
Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Felipe Aurelio Hernandez pled guilty to conspiracy to
distribute and possess with intent to distribute 500 grams or more
of methamphetamine and was sentenced to 240 months of imprisonment.
Hernandez raises two issues on appeal. He argues that the district
court erred: (1) by denying his motion to withdraw his guilty plea
and (2) in its determination of the amount of drugs for which he
was held responsible at sentencing. For the reasons that follow,
we affirm.
We find that the district court did not abuse its
discretion in denying Hernandez’s motion to withdraw his guilty
plea. United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir.
2000). The court properly conducted Hernandez’s plea hearing under
Fed. R. Crim. P. 11. United States v. Puckett, 61 F.3d 1092, 1099
(4th Cir. 1995). In addition, the court carefully and correctly
analyzed the motion, using the relevant factors articulated in this
Court’s opinion in United States v. Moore, 931 F.2d 245, 248 (4th
Cir. 1991). Accordingly, this claim is without merit.
The court did not clearly err in determining the quantity
of drugs attributable to Hernandez for sentencing purposes. United
States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). The court’s
drug quantity findings were supported by testimony at the
sentencing hearing, United States v. Falesbork, 5 F.3d 715, 722
(4th Cir. 1993), and by amounts listed in the presentence report.
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United States v. Love, 134 F.3d 595, 606 (4th Cir. 1998).
Accordingly, this claim fails.
Hernandez has moved for leave to file a supplemental
brief addressing the impact of Blakely v. Washington, 124 S. Ct.
2531 (2004), on this case. The motion is both granted and deemed
to be the supplemental brief. In light of our recent order in
United States v. Hammoud, No. 03-4253, 2004 WL 1730309 (4th Cir.
Aug. 2, 2004) (order), petition for cert. filed, __U.S.L.W.__,
(U.S. Aug. 6, 2004) (No. 04-193), relief under Blakely is denied.
Accordingly, we affirm Hernandez’s conviction and
sentence. 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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