United States v. Aviles-Flores

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4258
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ULISES AVILES-FLORES, a/k/a Olese,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (CR-03-31)
Submitted: November 2, 2005 Decided: February 14, 2006
Before WILLIAMS, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John G. Hackney, Jr., Charleston, West Virginia, for Appellant.
Thomas E. Johnston, United States Attorney, Thomas O. Mucklow,
Assistant United States Attorney, Martinsburg, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ulises Aviles-Flores appeals the sentence imposed by the
district court following his guilty plea to a single count of
aiding and abetting the distribution of 895.7 grams of
methamphetamine, in violation of 18 U.S.C. § 2 (2000), and 21
U.S.C. § 841 (2000). Because our review of the record discloses no
reversible error, we affirm.
Aviles-Flores first claims insufficient evidence
supported the district court’s factual finding that he possessed a
dangerous weapon during the scope of his criminal conduct.
Although the parties dispute whether Aviles-Flores partially waived
this claim, our review of the record, including the testimony at
the sentencing hearing, discloses that sufficient evidence supports
the district court’s finding. Moreover, because Aviles-Flores
possessed a firearm, the district court did not err in declining to
award Aviles-Flores the benefit of the safety valve provision. See
U.S. Sentencing Guidelines Manual § 5C1.2(a)(2) (2002).
Accordingly, we deny relief on these claims.
Aviles-Flores also asserts the district court’s
imposition of sentence violates his Sixth Amendment right to trial
by a jury. See United States v. Booker, 125 S. Ct. 738 (2005).
Because Aviles-Flores did not raise this issue in the district
court, we review for plain error. See United States v. Harp, 406
F.3d 242, 247 (4th Cir. 2005). To establish plain error,
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Aviles-Flores must show that an error occurred, that the error was
plain, and that the error affected his substantial rights. United
States v. Olano, 507 U.S. 725, 732 (1993); United States v. White,
405 F.3d 208, 215 (4th Cir. 2005). To establish that a Sixth
Amendment error occurred in his sentencing, Aviles-Flores must show
that the district court imposed a sentence exceeding the maximum
allowed based only on the facts that he admitted. See Booker, 125
S. Ct. at 756 (“Any fact (other than a prior conviction), which is
necessary to support a sentence exceeding the maximum authorized by
the facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable
doubt”); United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir.
2005).
Aviles-Flores pled guilty to Count 36 of the indictment,
aiding and abetting the distribution of 895.7 grams of
methamphetamine. This drug quantity supports a base offense level
of thirty-two. See USSG § 2D1.1(c)(4) (for “at least 500 G but
less than 1.5 KG of Methamphetamine”). When combined with
Aviles-Flores’ criminal history category, this base offense level
corresponds to a sentencing range of 121 to 151 months. See USSG
Ch. 5, Pt. A, table. Because Aviles-Flores’ sentence of 135 months
does not exceed the maximum authorized by the facts he admitted, no
Sixth Amendment error occurred. Accordingly, we affirm
Aviles-Flores’ sentence.
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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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