United States v. Ventura

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4458
HECTOR REYNERIO VENTURA, a/k/a
Hector Ventura,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4564
RENALDO OMAR GOMEZ-FELIZ, a/k/a
Junior Rivera,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, District Judge.
(CR-97-38-V)
Submitted: April 13, 1999
Decided: April 27, 1999
Before MURNAGHAN, ERVIN, and WILLIAMS, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Randolph Marshall Lee, Charlotte, North Carolina; Charles L. Mor-
gan, Jr., Charlotte, North Carolina, for Appellants. Mark T. Calloway,
United States Attorney, D. Scott Broyles, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In these consolidated appeals, Hector Reynerio Ventura and
Renaldo Omar Gomez-Feliz* appeal their sentences for conspiracy to
possess with intent to distribute drugs. Finding no error, we affirm.
I
Ventura, a permanent resident alien of the United States, pled
guilty to conspiracy to possess with intent to distribute cocaine and
heroin in violation of 21 U.S.C.A. § 846 (West 1994 & Supp. 1998),
and was sentenced to forty-eight months' imprisonment and four
years' supervised release. He now appeals his sentence, alleging that
the district court erred when it ordered that he surrender to the Immi-
gration and Naturalization Service ("INS") for deportation proceed-
ings as a condition of his supervised release. Ventura's attorney filed
a brief in accordance with Anders v. California , 386 U.S. 738 (1967),
addressing whether the district court erred when it ordered that Ven-
tura surrender to the INS for deportation proceedings as a condition
of his supervised release. Counsel asserts that there are no meritorious
_________________________________________________________________
*Gomez-Feliz used his alias, Junior Rivera, in much of the proceeding
below, and his appellate brief uses the alias.
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issues for appeal. Ventura was informed of his right to file a pro se
supplemental brief, which he failed to file.
Ventura contends that the district court did not have the authority
to order that he report to INS officials to be deported pursuant to 18
U.S.C.A. § 3583(d) (West 1994 & Supp. 1998), as a condition of his
supervised release. Because Ventura failed to object to this condition
below, we review for plain error. See United States v. Olano, 507 U.S.
725, 731-32 (1993). This claim is controlled by our decision in United
States v. Xiang, 77 F.3d 771 (4th Cir. 1996). In Xiang, we upheld the
district court's judgment ordering that the defendant surrender to the
INS as a condition of his supervised release, but modified the lan-
guage of the judgment to avoid any ambiguity. In the present case, the
district court adhered to the modified language approved in Xiang.
Therefore, we find that the district court did not commit plain error.
In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore affirm Ventura's
sentence. This court requires that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States for fur-
ther review. If the client 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. Coun-
sel's motion must state that a copy thereof was served on the client.
II
Gomez-Feliz pled guilty to conspiracy to possess with intent to dis-
tribute heroin in violation of § 846. He appeals his sentence, alleging
that the district court erred when it failed to grant him an adjustment
for timely acceptance of responsibility under U.S. Sentencing Guide-
lines Manual (USSG) § 3E1.1(a), (b)(1) (1998).
Gomez-Feliz asserts that although he received an upward adjust-
ment for obstruction of justice under USSG § 3C1.1, the district court
erred when it failed to give him a three point reduction in his base
offense level for timely acceptance of responsibility because he stipu-
lated that he was responsible for nine grams of heroin and pled guilty.
When an enhancement for obstruction of justice is appropriate, a
downward adjustment for acceptance of responsibility can only be
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justified in exceptional circumstances. See USSG § 3E1.1 comment.
(n.4). We find no such circumstances here. The record reveals that
Gomez-Feliz continued to deny his involvement in the conspiracy,
which constituted a failure to admit to all of his criminal conduct. See
United States v. Gordon, 895 F.2d 932, 936 (4th Cir. 1990) (holding
that partial acceptance of responsibility is insufficient to warrant a
reduction under the guidelines). Further, Gomez-Feliz lied about his
name in an effort to avoid being held accountable for past criminal
conduct at sentencing. Therefore, we find that the district court did
not commit clear error when it denied Gomez-Feliz any reduction in
his base offense level, see United States v. Daughtrey, 874 F.2d 213,
217 (4th Cir. 1989) (noting standard of review), and affirm his sen-
tence.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court, and
oral argument would not aid the decisional process.
AFFIRMED
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