United States v. Comparan , 249 F. App'x 307 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4992
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SALVADOR COMPARAN, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:06-cr-00075-WLO)
Submitted: August 27, 2007 Decided: October 2, 2007
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Kyle Smith, LAW OFFICE OF J. KYLE SMITH, P.L.L.C., Newton, North
Carolina, for Appellant. David Paul Folmar, Jr., Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Salvador Comparan, Jr.,
pled guilty to possessing with intent to distribute 663.63
kilograms of marijuana, in violation of 21 U.S.C.A. § 841(a)(1),
(b)(1)(B) (West 1999 & Supp. 2007). He was sentenced to seventy-
eight months of imprisonment, to be followed by four years of
supervised release. On appeal, Comparan’s counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738, 744 (1967), raising
five issues but stating that there were no meritorious issues for
appeal. The Government declined to file a brief; Comparan, advised
of his right to file a pro se supplemental brief, has done so,
alleging ineffective assistance of counsel.
Counsel for Comparan first seeks to challenge the
district court’s denial of a motion to suppress. In view of
Comparan’s valid guilty plea, he has waived all antecedent
nonjurisdictional defects, Tollett v. Henderson, 411 U.S. 258, 267
(1973); United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993),
including his Fourth Amendment claim. Counsel next claims that the
district court erred in considering the Government’s response to
Comparan’s objections to the presentence report. This claim is
patently without merit, particularly in light of trial counsel’s
concession that Comparan was not prejudiced by any delay on the
part of the Government.
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Third, counsel for Comparan challenges the district
court’s application of a guidelines enhancement. Under U.S.
Sentencing Guidelines Manual § 2D1.1(b)(1) (2005), a defendant’s
base offense level is increased 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. “In order to prove that a
weapon was present, the Government need show only that the weapon
was possessed during the relevant illegal drug activity.” United
States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001). The
district court’s determination that a firearm or other weapon was
present and justifies the enhancement is a factual question that is
reviewed for clear error. United States v. Apple, 915 F.2d 899,
914 (4th Cir. 1990). Our review of the record leads us to conclude
that the district court did not err in enhancing Comparan’s
sentence under this provision.
Counsel also challenges whether the district court acted
unreasonably in denying Comparan a four-point reduction based on
his minimal role in the offense. A defendant has the burden of
showing by a preponderance of the evidence that he had a minimal or
minor role in the offense. United States v. Akinkoye, 185 F.3d
192, 202 (4th Cir. 1999). A defendant may receive a four-level
reduction for being a minimal participant if he is “plainly among
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the least culpable of those involved in the conduct of a group.”
USSG § 3B1.2 cmt. n.4. This level of culpability is shown by “the
defendant’s lack of knowledge or understanding of the scope and
structure of the enterprise and of the activities of others . . .
.” Id. A two-level reduction may be made when a defendant is a
minor participant, that is, one “who is less culpable than most
other participants, but whose role could not be described as
minimal.” USSG § 3B1.2 cmt. n.5.
In deciding whether the defendant played a minor or
minimal role, the “critical inquiry is not just whether the
defendant has done fewer ‘bad acts’ than his co-defendants, but
whether the defendant’s conduct is material or essential to
committing the offense.” United States v. Pratt, 239 F.3d 640, 646
(4th Cir. 2001) (internal quotations and citations omitted). Role
adjustments are determined on the basis of the defendant’s relevant
conduct. United States v. Fells, 920 F.2d 1179, 1183-84 (4th Cir.
1990). The district court in this case denied the minimal role
reduction, finding “no evidence to support a minimal or minor role
in connection with the crime,” and this finding is not clearly
erroneous.
Finally, counsel questions whether the district court
acted unreasonably in denying an additional one-level downward
adjustment for acceptance of responsibility under USSG § 3E1.1(b).
However, this adjustment may only be made upon formal motion by the
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Government at the time of sentencing. USSG § 3E1.1 cmt. n.6. In
this case, there was no such motion. Therefore, as the district
court noted, Comparan was not eligible for the third point
reduction, and this claim entitles him to no relief. United
States v. Chase, 466 F.3d 310, 315 (4th Cir. 2006).
In his pro se supplemental brief, Comparan asserts that
appellate counsel was ineffective for filing an Anders brief. This
claim is not cognizable on direct appeal. To allow for adequate
development of the record, a defendant must bring such claims in a
28 U.S.C. § 2255 (2000) motion unless the record conclusively
establishes ineffective assistance of counsel. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999); United States v.
King, 119 F.3d 290, 295 (4th Cir. 1997). Here, the record does not
conclusively establish that Comparan’s appellate counsel was
ineffective.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Comparan’s conviction and sentence. This court
requires that counsel inform Comparan, in writing, of the right to
petition the Supreme Court of the United States for further review.
If Comparan 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 Comparan. We
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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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