US v. Luis Areyanes, No. 13-4922 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4922 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LUIS BERNAL AREYANES, a/k/a Luis Alberto Areyanes Bernal, a/k/a Luis Alberto Bernal Areyanes, Defendant - Appellant. No. 13-4939 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CESAR BERNAL AREYANES, Defendant - Appellant. Appeals from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, Chief District Judge. (5:13-cr-00149-D-2; 5:13-cr-00149-D-1) Submitted: August 28, 2014 Decided: Before SHEDD, AGEE, and DIAZ, Circuit Judges. October 15, 2014 No. 13-4922 dismissed; No. 13-4939 affirmed by unpublished per curiam opinion. Noah A. Clements, THE CLEMENTS FIRM, Washington, D.C.; Stephen C. Gordon, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellants. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Luis Bernal Areyanes ( Luis ) and Cesar Bernal Areyanes ( Cesar ) pleaded guilty to conspiracy to distribute and possess with intent to distribute a quantity of cocaine, in violation of 21 possession of a aiding and U.S.C. firearm abetting §§ 841(b)(1)(C), during such a conduct, drug in 846 (2012), trafficking violation of and crime 18 and U.S.C. § 924(c)(1)(A), (c)(1)(A)(i) (2012), and 18 U.S.C. § 2 (2012). Cesar also pleaded guilty to distribution of a quantity of cocaine, in violation of 18 U.S.C. § 841(a)(1), (b)(1)(C), and possession of a firearm by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5), 924(a)(2) (2012). We have consolidated their appeals and will dismiss Luis s appeal and affirm Cesar s appeal. Luis pleaded guilty pursuant to a plea agreement in which he agreed to waive his right to appeal whatever sentence was imposed, including any issues relating to the establishment of the advisory Sentencing Guidelines. the district court reviewed the At the Rule 11 hearing, appeal waiver and Luis acknowledged that he understood it. The Government seeks to enforce Luis s appeal waiver. A defendant may § 3742 (2012). Cir. 2010). waive his appellate rights under 18 U.S.C. United States v. Manigan, 592 F.3d 621, 627 (4th We review the validity of an appellate waiver de 3 novo and will uphold the waiver if it is valid and . . . the issue being appealed is within the scope of the waiver. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). An knowingly appellate and appeal. waiver Id. at 169. valid if the agreed intelligently is to waive the This determination, often defendant right to based on the sufficiency of the plea colloquy and whether the district court questioned the defendant about the appeal waiver, ultimately turns on an evaluation of the totality of the circumstances. Id. We consider all of the particular facts and circumstances surrounding and [the] conduct omitted). regarding of case, the including accused. the Id. background, (internal experience, quotation marks Generally, if a district court questions a defendant the waiver of appellate rights during the Rule 11 colloquy and the record indicates that the defendant understood the full significance of the waiver, the waiver is valid. United States v. Copeland, 707 F.3d 522, 528 (4th Cir.), cert. denied, 134 S. We have Ct. 126 (2013) (internal quotation marks omitted). reviewed the record and considered Luis s arguments against enforcement of the waiver, and conclude that the appellate enforceable. waiver Because was knowing, Luis s voluntary issues on and appeal therefore, concern the establishment of the Guidelines range of imprisonment, we also 4 conclude that they are within the scope of the appeal waiver. Accordingly, we dismiss Luis s appeal. * Cesar converting claims currency equivalency. that seized the at district his court apartment into erred a by cocaine Because Cesar did not object to any aspect of the sentencing calculus, our review is limited to plain error. See United States v. Hamilton, 701 F.3d 404, 410 (4th Cir. 2012), cert. denied, 133 S. Ct. 1838 (2013). To establish plain error, the appealing party must show that an error (1) was made, (2) is plain (i.e., substantial rights. clear or obvious), and (3) affects United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010). We have held that courts may convert money considered to be drug trafficking proceeds into an equivalent drug quantity for sentencing purposes. See United States v. Kiulin, 360 F.3d 456, 461 (4th Cir. 2004); United States v. Hicks, 948 F.2d 877, 883 (4th Cir. 1991). In this case, the presentence report held Cesar accountable for 100.471 grams of cocaine. That amount was arrived at, in part, by converting the $2,530 police found at his apartment into 59.77 grams of cocaine, [b]ased upon a price * Luis supplemental this appeal 386 U.S. 738 Penniegraft, has filed a motion for leave to file a pro se brief. Because Luis is represented by counsel and is not submitted pursuant to Anders v. California, (1967), the motion is denied. See United States v. 641 F.3d 566, 569 n.1 (4th Cir. 2011). 5 of $1,200 per 28.35 grams of cocaine. to Federal sentencing Rule court of Criminal may accept J.A. at 216. Procedure any 32(i)(3)(A), undisputed presentence report as a finding of fact. Pursuant portion of the the Because Cesar did not object to the presentence report s implicit finding that the $2,530 in cash was derived from drug sales, or its express finding as to money s cocaine equivalency, the district court was not required to resolve any factual disputes, but instead was free to rely on the information contained in the presentence report. Cir. See United States v. Randall, 171 F.3d 195, 210 11 (4th 1999)(stating that [i]f the district court relies on information in the presentence report (PSR) in making findings, the defendant information bears relied the on by findings is incorrect ). burden the of district establishing court in that the making its We therefore find no error, plain or otherwise, on this record. Cesar sentence to the further contends district court that for we should resentencing remand in light his of proposed amendments to the Guidelines that may be beneficial to him. The Government opposes such a remand. There is no authority for Cesar s suggestion and we decline to accept his invitation. Accordingly, we affirm his sentence. We dismiss Luis s appeal, deny his motion for leave to file a pro se supplemental brief and affirm Cesar s sentence. 6 We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. No. 13-4922 DISMISSED No. 13-4939 AFFIRMED 7

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