US v. Norberto Aguilar

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:11-cr-00053-RLV-DCK-2 Copies to all parties and the district court/agency. [999330293].. [13-4357]

Appeal: 13-4357

Doc: 38

Filed: 04/04/2014

Pg: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4357

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NORBERTO RIVERA AGUILAR, a/k/a Beto,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Richard L.
Voorhees, District Judge. (5:11-cr-00053-RLV-DCK-2)

Submitted:

March 25, 2014

Decided:

April 4, 2014

Before NIEMEYER, SHEDD, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Scott Gsell, LAW OFFICE OF SCOTT GSELL, Charlotte, 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Unpublished opinions are not binding precedent in this circuit.

Appeal: 13-4357

Doc: 38

Filed: 04/04/2014

Pg: 2 of 4

PER CURIAM:
Norberto Rivera Aguilar appeals his conviction and the
120-month

sentence

imposed

by

the

district

court

following

Aguilar’s guilty plea to conspiracy to distribute and to possess
with intent to distribute five kilograms or more of cocaine and
fifty

grams

or

more

of

a

mixture

or

substance

containing

a

detectable amount of methamphetamine, in violation of 21 U.S.C.
§§ 841(b)(1)(A), (b)(1)(B), and 846 (2012).

Aguilar’s counsel

has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting that, in his opinion, there are no meritorious
issues for appeal, but questioning whether the district court
erred by applying a four-level enhancement under U.S. Sentencing
Guidelines Manual § 3B1.1(a) (2012) for Aguilar’s role as an
organizer or leader of the criminal activity.
supplemental

brief,

Aguilar

validity of his guilty plea.

challenges

his

In his pro se

sentence

and

the

We affirm.

Because Aguilar did not move in the district court to
withdraw his guilty plea, we review the Fed. R. Crim. P. 11
hearing for plain error.
517,

525

(4th

Cir.

United States v. Martinez, 277 F.3d

2002).

“[T]o

standard, [Aguilar] must show:

satisfy

the

plain

error

(1) an error was made; (2) the

error is plain; and (3) the error affects substantial rights.”
United
2009).

States

v.

Massenburg,

564

F.3d

337,

342-43

(4th

Cir.

Our review of the record leads us to conclude that the
2

Appeal: 13-4357

Doc: 38

Filed: 04/04/2014

Pg: 3 of 4

district court substantially complied with Rule 11, and that
Aguilar’s guilty plea was knowing and voluntary.
Turning to Aguilar’s sentencing claims, we review a
sentence for abuse of discretion.
U.S. 38, 51 (2007).

Gall v. United States, 552

This review entails appellate consideration

of both the procedural and substantive reasonableness of the
sentence.

Id.
Aguilar

challenges

the

four-level

enhancement

the

district court imposed under USSG § 3B1.1(a) for his role as an
organizer or leader of the conspiracy.

The district court’s

determination that a defendant is an organizer or leader in the
offense is a factual finding reviewed for clear error.

United

States v. Cameron, 573 F.3d 179, 184 (4th Cir. 2009); United
States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002).

To qualify

for a four-level increase under USSG § 3B1.1(a), a defendant
must have been “an organizer or leader of a criminal activity
that

involved

extensive.

five

or

more

participants

or

was

otherwise

Id.
Aguilar specifically pled guilty to Count One of the

indictment,

that

charged

a

drug

specifically listing five individuals.
was

Aguilar’s

primary

cocaine

trafficking

One of those individuals

supplier

and

the

couriers for Aguilar and acted at his direction.
criminal

activity

involved

at
3

least

conspiracy

five

others

were

Thus, the

participants

and

Appeal: 13-4357

Doc: 38

Filed: 04/04/2014

Pg: 4 of 4

Aguilar exercised authority over several of them.

We conclude

that the district court did not clearly err by concluding that
Aguilar

was

a

leader

or

organizer

four-level

of

increase

the

criminal

under

activity;

accordingly,

the

§ 3B1.1(a)

was

appropriate.

We further conclude that Aguilar was not entitled

to a reduction for a mitigating role in the offense and that his
sentence was procedurally and substantively reasonable.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal.

We

therefore

affirm

the

district

court’s

judgment.

This court requires that counsel inform Aguilar in writing of
his right to petition the Supreme Court of the United States for
further review.

If Aguilar requests that a petition be filed,

but counsel 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 Aguilar.

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

4