United States v. Alfredo Vergara-Escobar

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4682
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALFREDO VERGARA-ESCOBAR, a/k/a Flaco,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Michael F. Urbanski,
District Judge. (5:13-cr-00012-MFU-1)
Submitted: June 19, 2015 Decided: June 25, 2015
Before KEENAN and DIAZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Charles M. Henter, HENTERLAW, PLC, Charlottesville, Virginia,
for Appellant. Anthony P. Giorno, Acting United States
Attorney, Grayson A. Hoffman, Assistant United States Attorney,
Harrisonburg, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Alfredo Vergara-Escobar of conspiracy to
distribute methamphetamine, 21 U.S.C. § 846 (2012), and three
counts of distribution of methamphetamine, 21 U.S.C. § 841(a)(1)
(2012). The court sentenced Vergara-Escobar within the
Guidelines range to 292 months’ imprisonment. On appeal,
Vergara-Escobar argues that the district court violated his
constitutional rights by enhancing his sentence on the basis of
a prior conviction that was neither alleged in the indictment
nor proven by a reasonable doubt. He further contests the
district court’s imposition of a three-level enhancement based
on his role as a manager or supervisor in the offense. We
affirm.
We review a sentence for reasonableness under a deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 41, 51 (2007). This review entails appellate consideration
of both the procedural and substantive reasonableness of the
sentence. Id. at 51. After determining whether the district
court properly calculated the defendant’s advisory Guidelines
range and gave the parties an opportunity to argue for an
appropriate sentence, we analyze whether the district court
considered the 18 U.S.C. § 3553(a) (2012) factors and any
arguments presented by the parties, selected a sentence not
based on “clearly erroneous” facts, and sufficiently explained
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the selected sentence. Id. at 49-51; United States v. Carter,
564 F.3d 325, 328-30 (4th Cir. 2009). If the sentence is free
of “significant procedural error,” we review the substantive
reasonableness of the sentence, “tak[ing] into account the
totality of the circumstances.” Gall, 552 U.S. at 51. Any
sentence within a properly calculated Guidelines range is
presumptively substantively reasonable. United States v.
Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct.
421 (2014).
Relying on Alleyne v. United States, 133 S. Ct. 2151
(2013), Vergara-Escobar first argues that the district court
violated his Fifth and Sixth Amendment rights by increasing his
mandatory statutory minimum sentence based on judicial
factfinding of a prior conviction. Contrary to Vergara-
Escobar’s assertions, there was no error, plain or otherwise, in
the district court’s imposition of the enhanced penalty. See
United States v. Higgs, 353 F.3d 281, 324 (4th Cir. 2003)
(reviewing for plain error a constitutional claim raised for the
first time on appeal).
In Alleyne, the Supreme Court held that the Sixth Amendment
requires a jury to find beyond a reasonable doubt any facts that
increase a defendant’s mandatory minimum sentence. Alleyne, 133
S. Ct. at 2163-64. The Alleyne Court recognized, and expressly
declined to reconsider, however, a narrow exception that allows
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a judge to find that a defendant’s prior conviction occurred.
Id. at 2160 n.1 (citing Almendarez-Torres v. United States, 523
U.S. 224 (1998)). “Almendarez-Torres remains good law, and
[this Court] may not disregard it unless and until the Supreme
Court holds to the contrary.” United States v. McDowell, 745
F.3d 115, 124 (4th Cir. 2014), cert. denied, 135 S. Ct. 942
(2015). We therefore reject this argument.
Vergara-Escobar also contends that the district court erred
in applying a three-level enhancement for his role as a manager
or supervisor in the offense pursuant to U.S. Sentencing
Guidelines Manual § 3B1.1(b) (2013). The district court’s
imposition of a role adjustment is a factual determination
reviewed for clear error. United States v. Cabrera-Beltran, 660
F.3d 742, 756 (4th Cir. 2011). The adjustment applies “[i]f the
defendant was a manager or supervisor (but not an organizer or
leader) and the criminal activity involved five or more
participants or was otherwise extensive.” USSG § 3B1.1(b). To
qualify for such an enhancement, the defendant must have managed
or supervised “one or more other participants.” USSG § 3B1.1,
cmt. n.2. The enhancement is appropriate where the evidence
demonstrates that the defendant “controlled the activities of
other participants” or “exercised management responsibility.”
United States v. Slade, 631 F.3d 185, 190 (4th Cir. 2011).
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In challenging the enhancement, Vergara-Escobar argues, as
he did below, that he was simply a drug supplier who engaged in
common buyer-seller relationships and that his role therefore
did not warrant the enhancement. We conclude that the district
court did not clearly err in applying the enhancement. At the
very least, there were five participants, Vergara-Escobar
exercised control over one other co-conspirator, and he directed
further drug activity while he was incarcerated.
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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