US v. Luis Negrete, No. 10-4309 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4309 UNITED STATES OF AMERICA, Plaintiff Appellee, v. LUIS TORRES NEGRETE, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:08-cr-00151-WO-6) Submitted: November 7, 2011 Decided: November 17, 2011 Before GREGORY, DUNCAN, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Christopher A. Beechler, LAW OFFICES OF CHRISTOPHER A. BEECHLER, Winston-Salem, North Carolina, for Appellant. Randall Stuart Galyon, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Luis Torres Negrete pleaded guilty to conspiracy to distribute (2006). methamphetamine, in violation of 21 U.S.C. § 846 The district court sentenced Negrete to eighty-four months of imprisonment, and he now appeals. Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), questioning whether the district calculating the advisory Guidelines range. court erred in Negrete was informed of his right to file a pro se supplemental brief, but did not do so. Finding no error, we affirm. On appeal, counsel questions whether the district court erred in refusing to apply a reduction in offense level under the Guidelines for Negrete s minor role in the offense. We review a sentence for reasonableness, applying an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009). In so doing, we first examine the sentence for significant procedural error, including failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider selecting a the [18 sentence U.S.C.] based § on 3553(a) clearly [(2006)] erroneous failing to adequately explain the chosen sentence. U.S. at 51. 2 factors, facts, or Gall, 552 Moreover, calculations in the under reviewing Guidelines, the we district review the court s district court s legal conclusions de novo and its factual findings for clear error. United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010) (internal quotation marks and citation omitted). We will find clear error only if, on the entire evidence, we are left with the definite and firm conviction that a mistake has been committed. Id. at 631 (internal quotation marks, alteration, and citation omitted). Under the Guidelines, a defendant who is only a minor participant in a criminal activity may have his offense level reduced by ( USSG ) two levels. § 3B1.2(b) U.S. (2010). Sentencing This Guidelines reduction Manual applies to a defendant who is substantially less culpable than the average participant, minimal. but USSG § whose 3B1.2(b), role cmt. could not n.3(A) & be n.5. described In as deciding whether the defendant played a minor role, the critical inquiry is thus not just whether the defendant has done fewer bad acts than his co-defendants, but whether the defendant s conduct is material or essential to committing the offense. United States v. Pratt, 239 F.3d 640, 646 (4th Cir. 2001) (internal quotation marks and citation omitted). burden of demonstrating that he 3 The defendant bears the played a minor role in the offense by a preponderance of the evidence. United States v. Akinkoye, 185 F.3d 192, 202 (4th Cir. 1999). We have thoroughly reviewed the record and conclude that the district court did not err in calculating the advisory Guidelines range. of the parties Moreover, the court considered the arguments and the § explained its chosen sentence. F.3d 325, 330 (4th Cir. 3553(a) factors, and thoroughly See United States v. Carter, 564 2009) (district court must conduct individualized assessment based on the particular facts of each case, whether sentence is above, below, or within the guidelines range). We conclude, therefore, that the sentence is procedurally reasonable. We have examined the entire record in accordance with the requirements of Anders and have found no meritorious issues for appeal. Accordingly, we affirm the judgment of the district court. This writing, of court the requires right to that petition United States for further review. counsel the inform Supreme Negrete, Court of in the If Negrete 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 Negrete. We dispense with oral argument because the facts and legal contentions are 4 adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5
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