United States v. Molina , 286 F. App'x 94 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4917
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EMILIO MOLINA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Cameron McGowan Currie, District
Judge. (0:07-cr-00043-CMC-1)
Submitted: June 9, 2008 Decided: July 10, 2008
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Margaret A. Chamberlain, CHAMBERLAIN LAW FIRM, Greenville, South
Carolina, for Appellant. Robert Frank Daley, Jr., Assistant United
States Attorney, James Chris Leventis, Jr., OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Emilio Molina pleaded guilty, pursuant to a plea
agreement, to one count of conspiracy to possess with intent to
distribute and to distribute fifty grams or more of methamphetamine
and 500 grams or more of a mixture or substance containing a
detectable amount of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), 846 (2000). The district court sentenced
Molina to 121 months of imprisonment. On appeal, counsel filed an
Anders1 brief in which she states there are no meritorious issues
for appeal, but questions whether the district court erred in
determining the drug quantity attributed to Molina and in
converting the quantities of actual methamphetamine and
methamphetamine mixture to marijuana equivalents to determine
Molina’s offense level. Molina was advised of his right to file a
pro se supplemental brief, but has not filed a brief. The
Government waived the filing of a brief on appeal. We affirm.
In the presentence report (PSR), the probation officer
concluded that Molina was responsible for 39.4 grams of actual
methamphetamine and 456 grams of a mixture containing
methamphetamine. These quantities yielded a marijuana equivalency
of 1700 kilograms.2 On appeal, counsel argues that, even though
1
Anders v. California, 386 U.S. 738 (1967).
2
The Guidelines equate one gram of actual methamphetamine to
twenty kilograms of marijuana, while one gram of methamphetamine
mixture is equivalent to two kilograms of marijuana. U.S.
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Molina pleaded guilty to a conspiracy involving more than 500 grams
of a mixture containing methamphetamine, he could not be guilty of
that crime because the amount of methamphetamine mixture attributed
to him for sentencing was less than 500 grams. Counsel also
asserts that the district court erred in converting methamphetamine
quantities into marijuana equivalency.
This court reviews the sentence imposed by the district
court for an abuse of discretion. Gall v. United States, 128 S.
Ct. 586, 597 (2007). A sentence imposed within the properly
calculated Guidelines range is presumptively reasonable. United
States v. Go, 517 F.3d 216, 218 (4th Cir. 2008); see Rita v. United
States, 127 S. Ct. 2456, 2462-69 (2007) (upholding presumption of
reasonableness for within-Guidelines sentence). In considering the
district court’s application of the Guidelines, we review factual
findings for clear error and legal conclusions de novo. United
States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006).
Molina does not specifically contest the drug quantities
used in calculating his offense level. Such an argument would be
meritless, as Molina specifically admitted involvement with this
quantity of methamphetamine during the plea inquiry. To the extent
Molina asserts a defect in the indictment or an inadequate factual
basis for his guilty plea, these arguments are waived. A defendant
Sentencing Guidelines Manual (USSG) § 2D1.1, Drug Equivalency
Tables (2006).
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who pleads guilty waives “all non-jurisdictional defects, including
the right to contest the factual merits of the charges.” United
States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993) (internal
citations and quotation marks omitted). In this case, the
indictment validly charged an offense and the district court
conducted a thorough inquiry pursuant to Federal Rule of Criminal
Procedure 11 that verified that Molina’s guilty plea was knowing
and voluntary.
Molina was convicted and sentenced within the terms of
the applicable statutory provision. The indictment charged Molina
with possessing with intent to distribute 500 grams or more of a
mixture and substance containing a detectable amount of
methamphetamine. On this charge, Molina was subject to a
punishment of not less than ten years to life imprisonment,
pursuant to 21 U.S.C. § 841(b)(1)(A). Molina’s sentence of 121
months of imprisonment is within this statutory range and the
properly calculated Guidelines range.
Molina’s claim regarding the conversion of drug
quantities to marijuana equivalent is meritless. Counsel asserts
that Molina was not involved in any transactions in marijuana, and
should thus not be held responsible for that drug. Despite the
district court’s explanation, Molina misunderstands the Guidelines
scheme for determining the offense level when different types of
drugs are involved in a crime. The probation officer complied with
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the Guidelines, which instruct that “[w]here there are multiple
transactions or multiple drug types, the quantities of drugs are to
be added. Tables for making the necessary conversions are provided
below.” USSG § 2D1.1 comment. (n.6).
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Molina’s conviction and sentence. This court
requires that counsel inform Molina, in writing, of the right to
petition the Supreme Court of the United States for further review.
If Molina 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 Molina. 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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