United States v. Salvador Torres , 571 F. App'x 201 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4648
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SALVADOR VARGAS TORRES, a/k/a Chava,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:11-cr-00003-RJC-19)
Submitted: April 25, 2014 Decided: May 12, 2014
Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John J. Cacheris, LAW OFFICE OF JOHN J. CACHERIS, P.C.,
Charlotte, North Carolina, for Appellant. William A. Brafford,
Assistant United States Attorney, Charlotte, North Carolina; Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Salvador Vargas Torres appeals his conviction and
sentence for conspiracy to distribute and to possess with intent
to distribute at least five kilograms of cocaine, in violation
of 21 U.S.C. § 846. Torres pled guilty pursuant to a written
plea agreement and was sentenced to 170 months’ imprisonment and
five years of supervised release. On appeal, counsel has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting that, in light of Torres’ waiver of his right to
appeal, there are no meritorious issues for appeal, but
questioning whether the Government wrongfully declined to file a
motion for a downward departure based on substantial assistance
and whether the district court erred in applying a four-level
sentencing enhancement for Torres’ role in the offense. Torres
has not filed a supplemental pro se brief, despite notice of his
right to do so. We affirm Torres’ conviction and sentence.
Although counsel is correct that Torres’ plea
agreement contained an appellate waiver, the Government has not
sought to enforce the waiver in this case. Accordingly, we
conduct a full review of the record as required by Anders. See
United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007)
(“If an Anders brief is filed, the government is free to file a
responsive brief raising the waiver issue (if applicable) or do
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nothing, allowing this court to perform the required Anders
review.”).
Counsel first questions the Government’s failure to
move for a downward departure pursuant to U.S. Sentencing
Guidelines Manual (USSG) § 5K1.1, despite the assistance Torres
provided. When, as in this case, the plea agreement accords the
Government sole discretion whether to file a substantial
assistance motion, the defendant generally may not complain
about the failure to file such a motion. See United States v.
Wallace, 22 F.3d 84, 87 (4th Cir. 1994). The record identifies
no exception to this rule that would apply in this case.
Therefore, we find no error.
Counsel next questions whether the district court
erred in applying a four-level enhancement for Torres’ role in
the offense. The Sentencing Guidelines provide that a four-
level enhancement applies “[i]f the defendant was an organizer
or leader of a criminal activity that involved five or more
participants or was otherwise extensive.” USSG § 3B1.1(a). We
review for clear error the district court’s factual finding that
a defendant is an organizer or leader in the offense. United
States v. Cameron, 573 F.3d 179, 184 (4th Cir. 2009). Reversal
for clear error is warranted only when we are left with the
“definite and firm conviction that a mistake has been
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committed.” United States v. Harvey, 532 F.3d 326, 336-37 (4th
Cir. 2008) (internal quotation marks omitted).
Here, the testimony presented at sentencing
establishes that the criminal activity involved at least five
participants and that Torres exercised a leadership role by
distributing drugs through several coconspirators and
supervising some of their drug sales. Thus, the district court
did not clearly err in finding Torres to be an organizer or
leader in the conspiracy and in applying the four-level
enhancement of USSG § 3B1.1(a).
In accordance with the requirements of Anders, we have
examined the entire record and have found no meritorious issues.
We therefore affirm the district court’s judgment. This Court
requires that counsel inform Torres, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Torres 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 Torres.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before this Court and argument would not aid the decisional
process.
AFFIRMED
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