United States v. Ortiz , 231 F. App'x 289 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4369
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ENRIQUE MARTINEZ ORTIZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:02-cr-00094-11)
Submitted: May 30, 2007 Decided: July 5, 2007
Before WILLIAMS, Chief Judge, and WILKINSON and SHEDD, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Charles R. Brewer, Asheville, North Carolina, for Appellant.
Gretchen C.F. Shappert, United States Attorney, Thomas Cullen,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Enrique Martinez Ortiz pled guilty to conspiracy to
possess with intent to distribute marijuana, cocaine, and cocaine
base, in violation of 21 U.S.C. § 846 (2000), conspiracy to import
marijuana into the United States, in violation of 21 U.S.C.A.
§§ 952(a), 960, 963 (West 1999 & Supp. 2007), and conspiracy to
violate several money laundering statutes, in violation of 18
U.S.C.A. § 1956(h) (West 2000 & Supp. 2007). The district court
sentenced Ortiz to concurrent 151-month prison terms on each count.
Ortiz timely appeals.
On appeal, Ortiz asserts that the district court failed
to adequately consider his objections to the presentence report
(“PSR”). Under Rule 32(i)(3)(B) of the Federal Rules of Criminal
Procedure, a district court must rule on objections to the PSR or
find that a ruling is unnecessary because the disputed matter will
not affect sentencing or will not be considered in sentencing.
This rule “protect[s] a defendant’s due process rights to be
sentenced on the basis of accurate information, and facilitates
appellate review by furnishing a clear record of the resolution of
disputed facts.” United States v. McCants, 434 F.3d 557, 562 (D.C.
Cir. 2006) (internal quotation marks and citation omitted).
In his written objections to the PSR, Ortiz challenged
the three-level increase in offense level under U.S. Sentencing
Guidelines Manual (“USSG”) § 3B1.1(b) (2004)for his role in the
offense. However, at sentencing, Ortiz’s counsel conceded that
there was sufficient evidence to support the enhancement. Ortiz
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also objected to the PSR’s finding that he was responsible for
12,742.53 kilograms of marijuana, arguing that he was directly
involved with slightly less than 2000 kilograms of marijuana. At
sentencing, the government stated that Ortiz should be responsible
for only 3400 kilograms of marijuana and the district court
sentenced Ortiz based on this lesser quantity. Ortiz could have
objected at the sentencing hearing to the district court’s
determination, but he failed to avail himself of the opportunity.
We therefore find that Ortiz cannot now argue that the district
court failed to adequately consider his objection.
Accordingly, we affirm Ortiz’s 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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