US v. Jovo Nunez

Filing

AMENDING ORDER/OPINION filed [998924415] amending and superseding Unpublished per curiam Opinion [998924032-2]. Originating case number: 5:10-cr-00005-RLV-DCK-2 Copies to all parties. [12-4054]

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FILED: August 24, 2012
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4054
(5:10-cr-00005-RLV-DCK-2)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOVO VARGAS NUNEZ,
Defendant - Appellant.

O R D E R
The Court amends its opinion filed today, as follows:
On the cover page in the attorney data section, the words
"Appellant

Pro

Se"

are

corrected

to

read

"Asheville,

North

Carolina, for Appellant."

For the Court – By Direction
/s/ Patricia S. Connor
Clerk

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4054
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOVO VARGAS NUNEZ,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Richard L.
Voorhees, District Judge. (5:10-cr-00005-RLV-DCK-2)
Submitted:

August 22, 2012

Decided: August 24, 2012

Before WILKINSON, GREGORY, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Tony E. Rollman, Asheville, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jovo Vargas Nunez pled guilty pursuant to a written
plea agreement to Count 1, conspiracy to distribute and possess
with intent to distribute cocaine.

After the district court

granted Nunez a two-level downward variance, it sentenced him to
132

months

of

imprisonment,

the

middle

calculated advisory sentencing range.

of

his

correctly

On appeal, counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting there are no meritorious grounds for appeal,
but

raising

erred

by

the

following

increasing

issue:

Nunez’s

whether

base

the

offense

district

level

by

court

two

for

possession of a firearm during the course of the conspiracy
under U.S. Sentencing Guidelines Manual (“USSG”) § 2D1.1(b)(1)
(2011).

Although informed of his right to do so, Nunez has not

filed a pro se supplemental brief.

For the reasons that follow,

we affirm.
After United States v. Booker, 543 U.S. 220 (2005), we
review

a

sentence

for

reasonableness,

discretion standard of review.
38, 51 (2007).
to

ensure

an

abuse

of

Gall v. United States, 552 U.S.

The first step in this review requires the court

that

procedural error.
(4th Cir. 2008).

using

the

district

court

committed

no

significant

United States v. Evans, 526 F.3d 155, 161
Procedural errors include failing to calculate

(or improperly calculating) the Guidelines range, treating the
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Guidelines

Filed: 08/24/2012

as

mandatory,

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failing

to

consider

the

18

U.S.C.

§ 3553(a) (2006) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence — including an explanation for any deviation from the
Guidelines range.

Gall, 552 U.S. at 51.

Only if we find a

sentence procedurally reasonable may we consider its substantive
reasonableness.
Cir. 2009).

United States v. Carter, 564 F.3d 325, 328 (4th

Here, we discern no basis to conclude that Nunez’s

within-Guidelines

sentence

was

substantively unreasonable.

either

procedurally

or

See United States v. Powell, 650

F.3d 388, 395 (4th Cir.) (noting this court presumes sentence
within

applicable

Guidelines

range

to

be

reasonable),

cert.

denied, 132 S. Ct. 350 (2011).
Although counsel suggests that Nunez’s offense level
should

not

have

been

increased

two

levels

pursuant

to

USSG

§ 2D1.1(b)(1), we conclude the enhancement was appropriate.
indicated
court,

the

although

himself,
would

in

it

do

so

was

presentence
Nunez

did

not

foreseeable

during

the

report

to

adopted

necessarily
him

commission

that
of

by

possess

his

the

the

As

district
a

weapon

co-conspirators

crime.

See

USSG

§ 2D1.1(b)(1), comment. (n.3(A)) (noting that the “enhancement
should
clearly

be

applied

improbable

offense”).

if

the

that

weapon

the

was

weapon

present,
was

unless

connected

it

with

is
the

Here, there was wiretap evidence that weapons were
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used to collect a drug debt and co-conspirators, both above and
below Nunez in the conspiracy, possessed weapons.

Whether a

district court properly applied a USSG § 2D1.1(b)(1) enhancement
is reviewed for clear error, United States v. McAllister, 272
F.3d 228, 234 (4th Cir. 2001), and we find none.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Nunez’s conviction and sentence.

This court

requires that counsel inform Nunez, in writing, of the right to
petition the Supreme Court of the United States for further
review.

If Nunez requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel
may

move

in

representation.

this

and

materials

legal
before

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Nunez.
facts

court

We dispense with oral argument because the

contentions

are

adequately

the

and

argument

court

presented

would

not

in

the

aid

the

decisional process.

AFFIRMED

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