US v. Jose Valderrama, No. 08-4926 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4926 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JOSE MARIA BELTRAN VALDERRAMA, a/k/a Chema, Defendant Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., Senior District Judge. (1:07-cr-00200-NCT-1) Submitted: February 25, 2010 Decided: March 18, 2010 Before KING, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr., Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Sandra Jane Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jose Maria Beltran Valderrama pled guilty, pursuant to a written plea agreement, to one count of conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846 (2006). The district court calculated Valderrama s Guidelines range at 210 to 262 months imprisonment, see U.S. Sentencing Guidelines Manual ( USSG ) (2007 & Supp. 2008), and sentenced Valderrama to 235 months imprisonment. Counsel has filed a brief pursuant to Anders v. California, 386 U.S. meritorious issues 738 for (1967), appeal, stating but that questioning there are whether no the district court abused its discretion in sentencing Valderrama. Valderrama has filed a pro se supplemental brief, challenging the procedural reasonableness of his sentence. We affirm. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for review. Because Valderrama did not move in the district court to withdraw his guilty plea, the adequacy of the Fed. R. Crim. P. 11 hearing is reviewed for plain error. See United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Our review of the transcript of the plea hearing leads us to conclude that the district court substantially complied with the mandates of Rule 11 in accepting Valderrama s guilty plea and that the court s omissions did not affect Valderrama s 2 substantial rights. Critically, the transcript reveals that the district court ensured the plea was supported by an independent factual basis and that Valderrama entered the plea voluntarily and with an understanding DeFusco, 949 of the consequences. F.2d 114, 116, See 119-20 United (4th States Cir. v. 1991). Accordingly, we discern no plain error. Turning to Valderrama s sentence, we review it under an abuse-of-discretion U.S. 38, 41 (2007). ensure that the standard. Gall v. United States, 552 In conducting this review, we must first district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, [(2006)] failing factors, to consider selecting a the [18 sentence U.S.C.] based § 3553(a) on clearly erroneous facts, or failing to adequately explain the chosen sentence. Id. at 51. When rendering a sentence, the district court must make an individualized assessment based on the facts presented, applying the relevant § 3553(a) specific circumstances of the case before it. factors to the United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and emphasis omitted). The court must also state in open court the particular reasons supporting its chosen sentence and set forth enough to satisfy this court that it has considered the parties arguments and has a reasoned basis for exercising 3 [its] own legal decisionmaking authority. Id. (internal quotation marks omitted). If the sentence is free from procedural error, we then consider the tak[ing] substantive into account Gall, 552 U.S. at 51. reasonableness the totality of of the the sentence, circumstances. Even if we would have imposed a different sentence, this fact alone is insufficient to justify reversal of the district court. United States v. Pauley, 511 F.3d 468, 474 (4th Cir. 2007) (quoting Gall, 552 U.S. at 51). This court presumes on appeal that a sentence within a properly calculated Guideline range is reasonable. See United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). Valderrama s first claim challenges the district court s calculation of his base offense level on the basis that the court erred in relying on the drug quantity included in the presentence report determining the defendant ( PSR ). proper involved in Under base a USSG offense drug § 1B1.3(a)(1)(B), level conspiracy, to the apply to defendant in a is responsible not only for his own acts, but for all reasonably foreseeable acts of his co-conspirators taken in furtherance of the joint criminal activity. See United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). If the district court relies on the drug quantity included in the PSR, the defendant bears the burden of establishing that the 4 information is incorrect. Id. at 210-11. district Because Valderrama did not object below, the court s attributable to determination him the relevant reviewed is of drug quantity for plain error. United States v. White, 405 F.3d 208, 215 (4th Cir. 2005). Our review of the record leads us to conclude that the district court did not err in determining the drug quantity attributable to Valderrama, as the PSR indicates that one of his co-conspirators directed another to traffic cocaine from North Carolina to Virginia. Valdrerrama offers no reason facts in the PSR should not be accepted as true. why the Accordingly, we discern no plain error. Next, both counsel and Valderrama question whether the district court enhancement for erred in possession its of application a firearm. of the two-level According to USSG § 2D1.1(b)(1), a district court is to increase a defendant s base offense level two levels [i]f (including a firearm) was possessed. a dangerous weapon USSG § 2D1.1(b)(1). The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense. enhancement USSG § 2D1.1(b)(1), cmt. n.3 (emphasis added). is proper when the weapon was possessed The in connection with drug activity that was part of the same course of conduct or common scheme as the offense of conviction. United States v. Manigan, 592 F.3d 621, 628-29 (4th Cir. 2010) 5 (internal quotation marks omitted). We review the district court s application of this enhancement for clear error. See United States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001). Our review of the sentencing transcript leads us to conclude that the district court did not clearly err in applying the enhancement, issue was as the recovered testimony from a indicates residence that where the firearm members of at the conspiracy furthered their drug trafficking offenses. Valderrama also questions whether the district court erred in enhancing his offense level three levels under USSG § 3B1.1(b) for his role in the offense. A defendant qualifies for a three-level enhancement if he 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). Leadership over only one other participant is sufficient as long as there is some control exercised. States v. Rashwan, 328 F.3d 160, 166 (4th Cir. 2003). United Because Valderrama did not object to the district court s application of the enhancement, Valderrama s challenge is reviewed for plain error. White, 405 F.3d at 215. After reviewing the PSR, we conclude that it was sufficient to establish that Valderrama was a manager of participants. criminal The activity district court enhancement. 6 that involved properly applied over the five role Further, we conclude that the district court did not otherwise commit procedural error in imposing Valderrama s sentence. The district court made an individualized assessment of relevant sentencing factors, and counsel and Valderrama fail to overcome the within-Guidelines district court presumption of sentence. We did not reasonableness therefore afforded conclude abuse its discretion affirm the district in his that the imposing the sentence. We therefore court s judgment. This court requires that counsel inform Valderrama, in writing, of the right to petition the Supreme Court of the United States for further review. If Valderrama requests that a petition be filed, believes but counsel 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 Valderrama. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 7

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