US v. Adolfo Portillo, No. 10-4919 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4919 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ADOLFO AMAYA PORTILLO, a/k/a Skyper, a/k/a Skipper, a/k/a Napa, a/k/a Pana, Defendant Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Anthony John Trenga, District Judge. (1:09-cr-00463-AJT-3) Submitted: April 28, 2011 Decided: May 2, 2011 Before DAVIS, KEENAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. John C. Kiyonaga, JOHN C. KIYONAGA LAW OFFICE, Alexandria, Virginia; Lana M. Manitta, RICH, ROSENTHAL, BRINCEFIELD, MANITTA, DZUBIN & KROEGER, LLP, Alexandria, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Morris R. Parker, Jr., Assistant United States Attorney, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Adolfo Amaya Portillo pled guilty without a plea agreement to using a firearm during a crime of violence causing death, in violation of 18 U.S.C. § 924(c)(1)(A), (j) (2006). was sentenced below the months imprisonment. Sentencing Guidelines range to He 480 On appeal, he argues that the district court erred in assessing a two-level enhancement to his offense level for an aggravating role in the offense, U.S. Sentencing Guidelines Manual § 3B1.1(c) (2009), and that the court failed to take into account certain mitigating factors in its consideration of the 18 U.S.C. § 3553(a) (2006) factors. We affirm. We review Portillo s abuse-of-discretion standard. 38, 51, (2007). ensure that sentence under a deferential Gall v. United States, 552 U.S. The first step in this review requires us to the district court committed no significant procedural error, such as improperly calculating the Guidelines United States v. Osborne, 514 F.3d 377, 387 (4th Cir. range. 2008) (internal omitted). the quotation marks, citations and alterations We then consider the substantive reasonableness of sentence, circumstances. tak[ing] into account the totality of the Gall, 552 U.S. at 51. Portillo first claims that the district court erred in assessing a two-level enhancement 2 based on its finding that Portillo was an organizer, leader, manager, or supervisor in the subject offense. See USSG § 3B1.1(c). In assessing whether the district court properly applied the Guidelines, we review the court s factual conclusions de novo. findings for clear error and Osborne, 514 F.3d at 387. its legal The court s ruling regarding a role adjustment is a factual determination United States v. Kellam, 568 F.3d reviewed for clear error. 125, 147-48 (4th Cir.), cert. denied, 130 S. Ct. 657 (2009). Reversal for clear error is warranted only where this court is left with the definite and firm conviction that a mistake has been committed. (4th Cir. 2008) United States v. Harvey, 532 F.3d 326, 337 (internal quotation marks omitted). After reviewing the record, we conclude that the district court did not err in applying the USSG § 3B1.1 enhancement. Portillo next argues that the district court erred by imposing a Specifically, sentence he that claims was that substantively the court unreasonable. gave insufficient consideration to certain mitigating factors, namely his history, as required under 18 U.S.C. § 3553(a)(1). belied by the record. Portillo s claim is The district court adequately addressed the factors Portillo proffered in mitigation, granted a downward variance from the Guidelines range, explanation for the chosen sentence. sentence was reasonable. 3 and provided a detailed We conclude Portillo s 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 4

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