US v. Agusto Valverde-Morales, No. 11-5046 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-5046 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AGUSTO VALVERDE-MORALES, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., Chief District Judge. (1:11-cr-00134-JAB-3) Submitted: April 19, 2012 Before WILKINSON and Senior Circuit Judge. DUNCAN, Decided: Circuit Judges, April 26, 2012 and HAMILTON, Affirmed by unpublished per curiam opinion. Anne R. Littlejohn, LAW OFFICE OF ANNE R. LITTLEJOHN, Greensboro, North Carolina, for Appellant. Ripley Rand, United States Attorney, Anand P. Ramaswamy, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Agusto sentence he Valverde-Morales received on his appeals guilty the plea twenty-two-month to one count of importation of an alien for an immoral purpose, in violation of 8 U.S.C. § 1328 (2006). The lone issue he asserts on appeal is that the sentencing court erred in declining to grant him a twolevel minor participant reduction U.S. under Guidelines Manual ( USSG ) § 3B1.2(b) (2011). Sentencing For the following reasons, we affirm. We review a sentence for reasonableness, applying an abuse of discretion standard. 38, 51 (2007). Gall v. United States, 552 U.S. In assessing whether a sentencing court properly applied the Guidelines, the district court s factual findings are reviewed for clear error and its legal conclusions are reviewed de novo. United States v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008). We will find clear error only if, on the entire evidence, we are left with the definite conviction that a mistake has been committed. and firm United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (internal quotation marks, alteration, and citation omitted). Under the Guidelines, a defendant who is only a minor participant in criminal activity is eligible for a two-level reduction in offense level. USSG § 3B1.2(b). This applies to a defendant who is substantially less culpable than the average 2 participant, minimal. but USSG § whose role 3B1.2(b), could cmt. not n.3(A) be & described n.5. While as the decision whether the defendant played a minor role hinges in part on a comparison of his conduct with that of his co- defendants, the critical inquiry is . . . not just whether the defendant has done fewer bad acts than his co-defendants, but whether the defendant s committing the offense. conduct is material or essential to United States v. Pratt, 239 F.3d 640, 646 (4th Cir. 2001) (citations omitted). The defendant has the burden of showing by a preponderance of the evidence that he played a minor role in the offense. United States v. Akinkoye, 185 F.3d 192, 202 (4th Cir. 1999). Under district these court did participant statute reduction under which principles, not clearly we err inapplicable to Valverde-Morales are in convinced the the minor Valverde-Morales. The was finding that convicted, 8 U.S.C. § 1328, forbids the importation of an alien for prostitution and criminalizes anyone who keep[s], maintain[s], control[s], support[s], employ[s], or harbor[s] in any house or other place, for the purpose of prostitution or for any other immoral purpose, any alien, in pursuance of such illegal importation. Id. Although Valverde-Morales insists that he served at the Fitch Street location in largely a janitorial capacity rather than as a substantial member of the prostitution ring, he has 3 admitted that he maintained the residence at which several of the prostitutes were held and that he transported various of the prostitutes clients. . . . his codefendants to assignations with their We believe this involvement is, at minimum, material to inasmuch and as committing it the offense, contributed to the Pratt, 239 F.3d maintenance, harboring of the illegal prostitution activity. at support, 646, and See 8 U.S.C. § 1328. As a result, the district court did not clearly err in denying Valverde-Morales request for a two-level reduction under § 3B1.2(b). Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented will not in aid the the material decisional process. AFFIRMED 4
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