US v. Luis Quintero, No. 10-4612 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4612 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LUIS SOTO QUINTERO, a/k/a Siete, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:10-cr-00009-LMB-1) Submitted: January 10, 2011 Decided: February 4, 2011 Before MOTZ, GREGORY, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Frank Salvato, Alexandria, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Elizabeth A. Gerlach, Special Assistant United States Attorney, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Luis Soto Quintero appeals his conviction and 192 month sentence for one count of conspiracy to distribute five kilograms or more of powder cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006). He argues that the district court erred in calculating his advisory Guidelines range by assessing a four-level enhancement to his offense level for a leadership role in the conspiracy, and he argues that the court imposed a substantively unreasonable sentence. For the reasons that follow, we affirm. We review Quintero s ensure that under a deferential Gall v. United States, 552 U.S. abuse-of-discretion standard. 38, 51 (2007). sentence The first step in this review requires us to the district court committed no significant procedural error, such as improperly calculating the Guidelines range. United States v. Osborne, 514 F.3d 377, 387 (4th Cir.) (internal quotation marks, citations and alterations omitted), cert. denied, 128 S. Ct. 2525 (2008). substantive reasonableness of the We then consider the sentence, account the totality of the circumstances. tak[ing] into Gall, 552 U.S. at 51. I. Leadership Role Quintero first claims that the district court erred in assessing a four-level enhancement for being a leader of the 2 conspiracy. court s He argues that, at the very least, the district factual findings were insufficient imposition of a leadership enhancement. to justify the We do not agree. In conducting a review for reasonableness, we review legal questions, including the interpretation of the guidelines, de novo, while factual findings are reviewed for clear error. United States v. Moreland, 437 F.3d 424, 433 (4th Cir. 2006). decision to defendant s In particular, we review a district court s apply role in a sentencing the offense adjustment for clear based error. on the United States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002). Under USSG § 3B1.1(a), an offense level is enhanced four levels if the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive. Factors distinguishing a leadership role from that of a mere participant or a manager include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. U.S. Sentencing Guidelines Manual § 3B1.1, cmt. n.4 (2009). We note that Quintero does not make any argument why the leadership enhancement should not apply in light of the allegations that he provided cell phones to his accomplices to 3 help avoid detection, that he directed the activities of his coconspirators, customers. district and that he supplied cocaine to numerous After reviewing the record, we conclude that the court did not err in applying the II. USSG § 3B1.1 Substantive Reasonableness enhancement. Quintero next argues that the court erred by imposing a sentence that was substantively unreasonable. He claims that the court gave insufficient consideration to mitigating factors and his 192 month sentence is unreasonable under the circumstances. Even if the sentence is procedurally reasonable, this court must consider the substantive reasonableness of the sentence, examin[ing] the totality of the circumstances to see whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in [18 U.S.C.] § 3553(a) [(2006)]. United States v. Mendoza- Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). This court presumes on appeal that a sentence within a properly calculated Guideline range is reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). We have reviewed the record and conclude that the district court considered and did not abuse its discretion in 4 rejecting Quintero s request for a downward variance. considered the § 3553(a) sentence consistent conclude that sentencing with Quintero has those factors and factors. not rebutted The court imposed a Accordingly, we presumption of the reasonableness accorded his within-Guidelines sentence. We court. legal before therefore affirm the judgment of the district We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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