US v. Jose Valderrama

Filing 920100318

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4926 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JOSE MARIA BELTRAN VALDERRAMA, a/k/a Chema, Defendant Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., Senior District Judge. (1:07-cr-00200-NCT-1) Submitted: February 25, 2010 Decided: March 18, 2010 Before KING, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr., Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Sandra Jane Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jose Maria Beltran Valderrama pled guilty, pursuant to a written plea agreement, to one count of conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. 841(b)(1)(A), 846 (2006). The district court calculated Valderrama's Guidelines range at 210 to 262 months' imprisonment, see U.S. Sentencing Guidelines Manual ("USSG") (2007 & Supp. 2008), and sentenced Valderrama to 235 months' imprisonment. California, meritorious Counsel has filed a brief pursuant to Anders v. U.S. 738 (1967), stating that there are no the 386 issues for appeal, but questioning whether district court abused its discretion in sentencing Valderrama. Valderrama has filed a pro se supplemental brief, challenging the procedural reasonableness of his sentence. We affirm. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for review. Because Valderrama did not move in the district court to withdraw his guilty plea, the adequacy of the Fed. R. Crim. P. 11 hearing is reviewed for plain error. See United States v. Our review of the Martinez, 277 F.3d 517, 525 (4th Cir. 2002). transcript of the plea hearing leads us to conclude that the district court substantially complied with the mandates of Rule 11 in accepting Valderrama's guilty plea and that the court's omissions did not affect Valderrama's 2 substantial rights. Critically, the transcript reveals that the district court ensured the plea was supported by an independent factual basis and that Valderrama entered the plea voluntarily and with an understanding DeFusco, 949 of the consequences. 114, 116, See United (4th States v. F.2d 119-20 Cir. 1991). Accordingly, we discern no plain error. Turning to Valderrama's sentence, we review it under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). ensure that the In conducting this review, we "must first district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, [(2006)] failing factors, to consider a the [18 U.S.C.] based on 3553(a) clearly selecting sentence erroneous facts, or failing to adequately explain the chosen sentence." Id. at 51. "When rendering a sentence, the district court must make an individualized assessment based on the facts presented," applying the "relevant 3553(a) factors to the specific circumstances of the case before it." United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and emphasis omitted). The court must also "state in open court the particular reasons supporting its chosen sentence" and "set forth enough to satisfy" this court that it has "considered the parties' arguments and has a reasoned basis for exercising 3 [its] own legal decisionmaking authority." Id. (internal quotation marks omitted). If the sentence is free from procedural error, we then consider "tak[ing] the into substantive account the reasonableness totality of of the the sentence, circumstances." Gall, 552 U.S. at 51. Even if we would have imposed a different sentence, "this fact alone is `insufficient to justify reversal of the district court.'" United States v. Pauley, 511 F.3d 468, This court 474 (4th Cir. 2007) (quoting Gall, 552 U.S. at 51). presumes on appeal that a sentence within a properly calculated Guideline range is reasonable. F.3d 178, 193 (4th Cir. 2007). Valderrama's first claim challenges the district See United States v. Allen, 491 court's calculation of his base offense level on the basis that the court erred in relying on the drug quantity included in the presentence determining defendant report the ("PSR"). base a drug Under USSG 1B1.3(a)(1)(B), to the apply to in a is proper in offense level involved conspiracy, defendant responsible not only for his own acts, but for all "reasonably foreseeable" acts of his co-conspirators taken in furtherance of the joint criminal activity. F.3d 195, 210 (4th Cir. 1999). See United States v. Randall, 171 If the district court relies on the drug quantity included in the PSR, the defendant bears the burden of establishing that the 4 information is incorrect. Id. at 210-11. district court's to Because Valderrama did not object below, the determination him is of the for relevant plain drug quantity United attributable reviewed error. States v. White, 405 F.3d 208, 215 (4th Cir. 2005). Our review of the record leads us to conclude that the district court did not err in determining the drug quantity attributable to Valderrama, as the PSR indicates that one of his co-conspirators directed another to traffic cocaine from North Carolina to Virginia. Valdrerrama offers no reason why the facts in the PSR should not be accepted as true. we discern no plain error. Accordingly, Next, both counsel and Valderrama question whether the district court for erred in its of application a firearm. of the two-level to USSG enhancement possession According 2D1.1(b)(1), a district court is to increase a defendant's base offense level two levels "[i]f a dangerous weapon "The (including a firearm) was possessed." USSG 2D1.1(b)(1). adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." enhancement USSG 2D1.1(b)(1), cmt. n.3 (emphasis added). is proper when "the weapon was possessed The in connection with drug activity that was part of the same course of conduct or common scheme as the offense of conviction." United States v. Manigan, 592 F.3d 621, 628-29 (4th Cir. 2010) 5 (internal quotation marks omitted). We review the district See court's application of this enhancement for clear error. United States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001). Our review of the sentencing transcript leads us to conclude that the district court did not clearly err in applying the enhancement, issue was as the testimony from a indicates residence that where the firearm of at the recovered members conspiracy furthered their drug trafficking offenses. Valderrama also questions whether the district court erred in enhancing his offense level three levels under USSG 3B1.1(b) for his role in the offense. A defendant qualifies for a three-level enhancement if he "was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive." USSG 3B1.1(b). "Leadership over only one other participant is United Because sufficient as long as there is some control exercised." States v. Rashwan, 328 F.3d 160, 166 (4th Cir. 2003). Valderrama did not object to the district court's application of the enhancement, Valderrama's challenge is reviewed for plain error. White, 405 F.3d at 215. After reviewing the PSR, we conclude that it was sufficient to establish that Valderrama was a manager of criminal The activity court that involved applied over the five role participants. enhancement. district properly 6 Further, we conclude that the district court did not otherwise sentence. commit procedural error in imposing Valderrama's The district court made an individualized assessment of relevant sentencing factors, and counsel and Valderrama fail to overcome the presumption sentence. not abuse of We its reasonableness therefore afforded that his the the within-Guidelines district sentence. We court conclude in did discretion imposing therefore affirm the district court's judgment. This court requires that counsel inform Valderrama, in writing, of the right to petition the Supreme Court of the United States for further review. filed, but counsel If Valderrama requests that a petition be believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel's motion must state that a copy thereof was served on Valderrama. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in the the materials decisional would aid process. AFFIRMED 7

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