US v. Jose Valderrama

Filing 920100318

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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