US v. Luis Areyane

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to file supplemental brief(s) [999343131-2] in 13-4922 Originating case number: 5:13-cr-00149-D-2 Copies to all parties and the district court/agency. [999454943].. [13-4922, 13-4939]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4922

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUIS BERNAL AREYANES, a/k/a Luis Alberto Areyanes Bernal,
a/k/a Luis Alberto Bernal Areyanes,
Defendant - Appellant.

No. 13-4939

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CESAR BERNAL AREYANES,
Defendant - Appellant.

Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever III,
Chief District Judge. (5:13-cr-00149-D-2; 5:13-cr-00149-D-1)

Submitted:

August 28, 2014

Decided:

Before SHEDD, AGEE, and DIAZ, Circuit Judges.

October 15, 2014

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No. 13-4922 dismissed; No. 13-4939 affirmed by unpublished per
curiam opinion.

Noah A. Clements, THE CLEMENTS FIRM, Washington, D.C.; Stephen
C. Gordon, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellants.
Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Luis

Bernal

Areyanes

(“Luis”)

and

Cesar

Bernal

Areyanes (“Cesar”) pleaded guilty to conspiracy to distribute
and possess with intent to distribute a quantity of cocaine, in
violation

of

possession

of

aiding

and

21
a

U.S.C.
firearm

abetting

§§ 841(b)(1)(C),
during

such

a

conduct,

drug
in

846

(2012),

trafficking
violation

of

and

crime
18

and

U.S.C.

§ 924(c)(1)(A), (c)(1)(A)(i) (2012), and 18 U.S.C. § 2 (2012).
Cesar

also

pleaded

guilty

to

distribution

of

a

quantity

of

cocaine, in violation of 18 U.S.C. § 841(a)(1), (b)(1)(C), and
possession of a firearm by an illegal alien, in violation of 18
U.S.C.

§§ 922(g)(5),

924(a)(2)

(2012).

We

have

consolidated

their appeals and will dismiss Luis’s appeal and affirm Cesar’s
appeal.
Luis pleaded guilty pursuant to a plea agreement in
which he agreed to waive his right to appeal whatever sentence
was imposed, including any issues relating to the establishment
of the advisory Sentencing Guidelines.
the

district

court

reviewed

the

At the Rule 11 hearing,
appeal

waiver

and

Luis

acknowledged that he understood it.
The Government seeks to enforce Luis’s appeal waiver.
A

defendant

may

§ 3742 (2012).
Cir. 2010).

waive

his

appellate

rights

under

18

U.S.C.

United States v. Manigan, 592 F.3d 621, 627 (4th
We review the validity of an appellate waiver de
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novo and will uphold the waiver if it is “valid and . . . the
issue being appealed is within the scope of the waiver.”

United

States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
An
knowingly

appellate

and

appeal.”

waiver

Id. at 169.

valid

if

agreed

intelligently

is

to

“the

waive

defendant

the

This determination, often

right

to

based on the

sufficiency of the plea colloquy and whether the district court
questioned

the

defendant

about

the

appeal

waiver,

ultimately

turns on an evaluation of the totality of the circumstances.
Id.

We consider all of “the particular facts and circumstances

surrounding
and

[the]

conduct

omitted).
regarding

of

case,

the

including

accused.”

the

Id.

background,

(internal

experience,

quotation

marks

“Generally, if a district court questions a defendant
the

waiver

of

appellate

rights

during

the

Rule

11

colloquy and the record indicates that the defendant understood
the

full

significance

of

the

waiver,

the

waiver

is

valid.”

United States v. Copeland, 707 F.3d 522, 528 (4th Cir.), cert.
denied,

134

S.

We

have

Ct.

126

(2013)

(internal

quotation

marks

omitted).
reviewed

the

record

and

considered

Luis’s

arguments against enforcement of the waiver, and conclude that
the

appellate

enforceable.

waiver
Because

was

knowing,

Luis’s

voluntary

issues

on

and

appeal

therefore,
concern

the

establishment of the Guidelines range of imprisonment, we also
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conclude that they are within the scope of the appeal waiver.
Accordingly, we dismiss Luis’s appeal. *
Cesar
converting

claims

currency

equivalency.

that

seized

the

at

district

his

court

apartment

into

erred
a

by

cocaine

Because Cesar did not object to any aspect of the

sentencing calculus, our review is limited to plain error.

See

United States v. Hamilton, 701 F.3d 404, 410 (4th Cir. 2012),
cert.

denied,

133

S.

Ct.

1838

(2013).

“To

establish

plain

error, the appealing party must show that an error (1) was made,
(2)

is

plain

(i.e.,

substantial rights.”

clear

or

obvious),

and

(3)

affects

United States v. Lynn, 592 F.3d 572, 577

(4th Cir. 2010).
We have held that courts may convert money considered
to be drug trafficking proceeds into an equivalent drug quantity
for sentencing purposes.

See United States v. Kiulin, 360 F.3d

456, 461 (4th Cir. 2004); United States v. Hicks, 948 F.2d 877,
883 (4th Cir. 1991).

In this case, the presentence report held

Cesar accountable for 100.471 grams of cocaine.

That amount was

arrived at, in part, by converting the $2,530 police found at
his apartment into 59.77 grams of cocaine, “[b]ased upon a price

*

Luis
supplemental
this appeal
386 U.S. 738
Penniegraft,

has filed a motion for leave to file a pro se
brief. Because Luis is represented by counsel and
is not submitted pursuant to Anders v. California,
(1967), the motion is denied. See United States v.
641 F.3d 566, 569 n.1 (4th Cir. 2011).
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of $1,200 per 28.35 grams of cocaine.”
to

Federal

sentencing

Rule
court

of

Criminal

“may

accept

J.A. at 216.

Procedure

any

32(i)(3)(A),

undisputed

presentence report as a finding of fact.”

Pursuant

portion

of

the
the

Because Cesar did not

object to the presentence report’s implicit finding that the
$2,530

in

cash

was

derived

from

drug

sales,

or

its

express

finding as to money’s cocaine equivalency, the district court
was not required to resolve any factual disputes, but instead
was free to rely on the information contained in the presentence
report.
Cir.

See United States v. Randall, 171 F.3d 195, 210–11 (4th

1999)(stating

that

“[i]f

the

district

court

relies

on

information in the presentence report (PSR) in making findings,
the

defendant

information

bears

relied

the

on

by

findings is incorrect”).

burden
the

of

district

establishing
court

in

that

the

making

its

We therefore find no error, plain or

otherwise, on this record.
Cesar
sentence

to

the

further

contends

district

court

that
for

we

should

resentencing

remand
in

light

his
of

proposed amendments to the Guidelines that may be beneficial to
him.

The

Government

opposes

such

a

remand.

There

is

no

authority for Cesar’s suggestion and we decline to accept his
invitation.

Accordingly, we affirm his sentence.

We dismiss Luis’s appeal, deny his motion for leave to
file a pro se supplemental brief and affirm Cesar’s sentence.
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We

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dispense

contentions

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with
are

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oral

because

argument

adequately

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

No. 13-4922 DISMISSED
No. 13-4939 AFFIRMED

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