US v. Moises Alejo, No. 14-4563 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4563 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MOISES ARIAS ALEJO, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, Chief District Judge. (5:14-cr-00004-D-1) Submitted: March 30, 2015 Decided: April 3, 2015 Before MOTZ, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Jeffrey W. Gillette, GILLETTE LAW FIRM, PLLC, Franklin, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Shailika S. Kotiya, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A federal grand jury indicted Moises Arias Alejo on one count of conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 846 (2012); two counts of distribution of cocaine, in violation of distribution 21 U.S.C. of, and § 841(a)(1) possession with (2012); intent one to count of distribute, cocaine, and aiding and abetting the same, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (2012); and one count of possession of a firearm by an illegal alien, and aiding and abetting the same, in violation of 18 U.S.C. §§ 922(g)(5), 924, and 2 (2012). Without a plea agreement, Alejo pled guilty to all five counts. imprisonment, The district court sentenced him to 78 months’ the middle of the Sentencing Guidelines range. Alejo appeals his sentence. We review Alejo’s sentence for procedural and substantive reasonableness standard.” “under a deferential abuse-of-discretion Gall v. United States, 552 U.S. 38, 41 (2007). In determining procedural reasonableness, we consider whether the district court properly calculated Alejo’s advisory Guidelines range, gave the parties an opportunity to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012) sentencing factors, selected a 2 sentence based on clearly erroneous facts, and sufficiently sentence. Id. at 49-51. explained the selected If the sentence is free of significant procedural error, we review it for substantive reasonableness, “tak[ing] into account the totality of the circumstances.” Id. at 51. In determining Alejo’s Guidelines range, the district court adopted the calculations in the presentence investigation report (“PSR”), level, including pursuant a to two-level U.S. increase in offense Guidelines Sentencing Alejo’s Manual § 2D1.1(b)(1) (2013), for possession of a firearm. no objections to the PSR. Alejo filed To the extent that Alejo challenges the § 2D1.1(b)(1) enhancement on appeal, we conclude that he waived appellate review through his concessions in the district court that he was subject to the enhancement. Generally, for plain error. unpreserved errors in sentencing are reviewed See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993). However, a defendant may waive appellate review of a sentencing error if he raises and then knowingly withdraws an objection to the error before the district court. See United States v. Horsfall, 552 F.3d 1275, 1283 (11th Cir. 2008) (finding that defendant’s withdrawal of objection to upward departure precluded appellate review of departure); United States v. Rodriguez, 311 F.3d 435, 437 (1st 3 Cir. 2002) (“A party who identifies an issue, and then explicitly withdraws it, has waived the issue.”) An appellant is precluded from challenging a waived issue on appeal. Rodriguez, 311 F.3d at 437. Such a waiver is distinguishable “from a situation in which a party fails to make a timely assertion of a right—what courts typically call a ‘forfeiture,’” id. (quoting Olano, 507 U.S. at 733), which, as noted above, may be reviewed on appeal for plain error. 507 U.S. at 733-34. Olano, “By contrast, waiver is intentional, and extinguishes an error so that there is no review, because the defendant right.” has knowingly and personally given up the waived United States v. Laslie, 716 F.3d 612, 614 (D.C. Cir. 2013) (internal quotation marks and citation omitted). Here, Alejo did not raise, and then withdraw, an objection to the § 2D1.1(b)(1) enhancement. However, he clearly was aware of the enhancement and chose not to challenge it. issuance of the PSR, when seeking a Prior to the continuance of the sentencing hearing in light of a pending Guidelines amendment, Alejo acknowledged that he would probably qualify for a sentencing enhancement for the firearm officers found in Alejo’s residence. * After receiving the PSR in which the § 2D1.1(b)(1) * Alejo sold cocaine from inside his home and stored cocaine on his property. 4 enhancement was applied, Alejo seeking a downward variance. filed a sentencing memorandum In his memorandum, he expressly stated that he did not challenge the Guidelines calculations in the PSR and acknowledged that there was “ample” legal authority to support the § 2D1.1(b)(1) enhancement, but he requested that the firearm not factor into the court’s decision regarding the variance. At sentencing, he once again stated that he had no objections to the PSR. Rather than pursuing a challenge to the firearm enhancement, Alejo chose to focus his efforts on gaining the benefit of downward a proposed variance. By Guidelines his amendment repeated and seeking acknowledgement of a the § 2D1.1(b)(1) enhancement and his concessions that it applied to his case, Alejo demonstrated contest the enhancement. his deliberate decision not to Under these circumstances, we conclude that he has waived appellate review of the issue. United States v. Olejiya, 754 F.3d 986, 993-94 (D.C. Cir. 2014); cf. United States v. Claridy, 601 F.3d 276, 284 n.2 (4th Cir. 2010) (“When a claim of constitutional error has been waived, it is not reviewable on appeal.”). The remainder of Alejo’s claims reasonableness of his sentence. concern the substantive Specifically, Alejo argues that the district erred in considering his possession of a firearm as 5 an aggravating factor and that his sentence is unreasonable when measured against the § 3553(a) factors. court should minimum, have imposed granted a him sentence a at He contends that the downward the bottom variance of the or, at a Guidelines range, because of his lack of a criminal record, the limited nature of his offense conduct, his personal history, the pending amendment to the Guidelines, and the disparity between his 78month sentence and the 60-month sentence his supplier subsequently received for trafficking in larger quantities of cocaine. We examine the substantive reasonableness under “the totality of the circumstances.” of a sentence Gall, 552 U.S. at 51; United States v. Howard, 773 F.3d 519, 528 (4th Cir. 2014). A sentence “within or below a properly calculated Guidelines range is presumptively reasonable [on appeal].” United States v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014). Alejo bears the burden to rebut this presumption “by showing that the sentence is unreasonable when measured against the . . . § 3553(a) factors.” Id. In evaluating the sentence for an abuse of discretion, “we give due deference to the [d]istrict [c]ourt’s reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence.” Gall, 552 U.S. at 6 59-60. When reviewing for substantive reasonableness, “we can reverse a sentence only if it is unreasonable, even if the sentence would not have been the choice of the appellate court.” 722 F.3d 583, 590 (4th Cir. United States v. Yooho Weon, 2013) (internal quotation marks omitted). The court stated that it had considered all of § 3553(a) sentencing factors, focusing on § 3553(a)(1): the the nature and circumstances of the offenses and Alejo’s history and characteristics. The court noted that all five of Alejo’s crimes were serious and he sold drugs on multiple occasions. The court found it “ridiculous, absurd and aggravating” that Alejo took his five-year-old son with him on one of his drug transactions, and considered Alejo’s possession of a firearm to be an aggravating factor. These considerations weighed against a downward variance in the court’s view. The court recognized that Alejo was raised in poverty and had, at least at times, engaged in unconvinced rather, the lawful that employment. Alejo court was However, “forced concluded that the into” his court drug motivation also was trafficking; was greed. Having considered the parties’ arguments, the record, and the § 3553 factors, the court concluded that a sentence in the middle of the Guidelines range was sufficient, but not greater than necessary, to comply with the § 3553(a) sentencing goals. 7 Alejo accorded fails his to rebut the within-Guidelines presumption sentence. of reasonableness The court clearly considered the § 3553(a) factors and gave a reasoned explanation for the sentence it imposed and its basis for rejecting Alejo’s arguments for a lesser sentence. U.S. 338, 356 (2007). district court unreasonable. the fact resulted does Cf. that in The fact that he disagrees with the not render the sentence Yooho Weon, 722 F.3d at 590. the a Rita v. United States, 551 pending lower Guidelines Guidelines substantively Furthermore, amendment range does would not have render unreasonable the imposed sentence, given that it was based on the Guidelines in effect at the time of Alejo’s sentencing. Accordingly, we affirm the criminal judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 8
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