US v. Sergio Reyna

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:13-cr-00205-D-1 Copies to all parties and the district court/agency. [999589523].. [14-4663]

Appeal: 14-4663

Doc: 33

Filed: 05/26/2015

Pg: 1 of 6

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4663

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SERGIO LOPEZ REYNA, a/k/a La Cra,
Defendant - Appellant.

Appeal 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-00205-D-1)

Submitted:

April 13, 2015

Decided:

May 26, 2015

Before AGEE, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Elisa Cyre Salmon, SALMON & GILMORE, LLP, Lillington, North
Carolina, for Appellant.
Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 14-4663

Doc: 33

Filed: 05/26/2015

Pg: 2 of 6

PER CURIAM:
Sergio Lopez Reyna appeals the aggregate 171-month, withinGuidelines

sentence

imposed

following

his

guilty

pleas

to

carjacking, in violation of 18 U.S.C. §§ 2119, 2 (2012), and
brandishing a firearm in furtherance of a crime of violence, in
violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), 2 (2012).

Reyna

argues on appeal that the district court was required to hold an
evidentiary

hearing

leadership

on

the

enhancement,

application

clearly

erred

of

the

when

it

three-level
applied

this

enhancement, clearly erred when it refused to apply a two-level
reduction

for

acceptance

of

responsibility,

substantively unreasonable sentence.
Reyna
conduct

first

an

leadership

challenges

evidentiary
enhancement.

the

hearing

and

imposed

a

We affirm.

district
on

Ordinarily,

court’s

his
we

failure

objection
review

the

to

to
the

district

court’s denial of an evidentiary hearing at sentencing for abuse
of discretion.
Cir.

1990).

See United States v. Pologruto, 914 F.2d 67 (5th
Issues

raised

for

the

first

however, are reviewed for plain error only.

time

on

appeal,

Henderson v. United

States, 133 S. Ct. 1121, 1125, 1126 (2013); see Fed. R. Crim. P.
52(b).

Although

the

parties

disagree

as

to

whether

Reyna

preserved the issue, we need not resolve this dispute because we
conclude the district court did not abuse its discretion.

2

Appeal: 14-4663

Doc: 33

Filed: 05/26/2015

Pg: 3 of 6

“Where the reliability of evidence is an issue[,] the court
should conduct an evidentiary hearing to determine the same.”
United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010)
(internal alteration and quotation marks omitted).

While “the

court must ensure that the parties have an adequate opportunity
to present relevant information [on a disputed issue],” there is
no affirmative requirement that the court allow live testimony.
U.S. Sentencing Guidelines Manual § 6A1.3, cmt. (2013).

After

review of the record, we conclude Reyna was provided an adequate
opportunity

to

present

information

relevant

to

the

disputed

leadership enhancement, and we therefore discern no error.
Next, Reyna argues that the district court clearly erred
when

it

applied

the

three-level

leadership

enhancement.

We

review sentences for reasonableness “under a deferential abuseof-discretion standard.”
(2007).

Gall v. United States, 552 U.S. 38, 41

This review entails appellate consideration of both the

procedural and substantive reasonableness of the sentence.
at 51.

Id.

We first ensure that the district court committed no

“significant procedural error,” including improper calculation
of the Guidelines range, insufficient consideration of the 18
U.S.C. § 3553(a) (2012) factors, and inadequate explanation of
the sentence imposed.

Id.

The district court’s imposition of a role adjustment is a
factual determination reviewed for clear error.
3

United States

Appeal: 14-4663

Doc: 33

Filed: 05/26/2015

Pg: 4 of 6

v. Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009).

A three-level

enhancement under USSG § 3B1.1(b) is warranted if “the defendant
was a manager or supervisor (but not an organizer or leader) and
the criminal activity involved five or more participants.”

To

qualify for such an enhancement, the defendant must have managed
or supervised “one or more other participants.”
cmt. n.2.

USSG § 3B1.1,

The enhancement is appropriate where the evidence

demonstrates that the defendant “controlled the activities of
other

participants”

or

“exercised

management

responsibility.”

United States v. Slade, 631 F.3d 185, 190 (4th Cir. 2011).
We conclude that the district court did not clearly err
when it applied this enhancement.

Reyna chose the location for

the carjacking; instructed a coconspirator how to get to the
club

and

where

to

park;

and

directed

two

coconspirators

to

approach the victim with him.
Next, Reyna contends the district court should have applied
a two-level reduction for acceptance of responsibility, arguing
that the court erroneously considered that he denied personally
possessing the firearm underlying the brandishing charge.

The

determination of whether a defendant merits an acceptance of
responsibility adjustment is a factual issue and thus reviewed
for clear error.

United States v. Burns, ___ F.3d ___, 2015 WL

615678, at *4 (4th Cir. Feb. 13, 2015).

“[T]he sentencing judge

is in a unique position to evaluate a defendant’s acceptance of
4

Appeal: 14-4663

Doc: 33

Filed: 05/26/2015

responsibility,
sentencing

and

judge

is

thus

Pg: 5 of 6

. . .

entitled

to

the
great

determination
deference

on

of

the

review.”

Elliott v. United States, 332 F.3d 753, 761 (4th Cir. 2003)
(internal alteration and quotation marks omitted).

This court

may reverse the district court’s finding only when “left with
the

definite

committed.”

and

firm

conviction

that

a

mistake

has

been

United States v. Dugger, 485 F.3d 236, 239 (4th

Cir. 2007) (internal quotation marks omitted).
We

perceive

decision.

no

clear

error

in

the

district

court’s

As the district court concluded, Reyna frivolously

denied relevant conduct by denying possessing or brandishing a
firearm during the carjacking.

The district court is permitted

to consider a defendant’s denial of facts underlying a § 924(c)
charge in deciding whether to grant the reduction.

See United

States v. Hargrove, 478 F.3d 195, 201 (4th Cir. 2007).
Finally, Reyna contends that his sentence is substantively
unreasonable.

If a sentence is procedurally reasonable, we then

consider whether it is substantively reasonable, “taking into
account the totality of the circumstances.”
51.

Gall, 552 U.S. at

“Any sentence that is within or below a properly calculated

Guidelines

range

is

presumptively

[substantively]

reasonable.

Such a presumption can only be rebutted by showing that the
sentence is unreasonable when measured against the 18 U.S.C.
§ 3553(a) factors.”

United States v. Louthian, 756 F.3d 295,
5

Appeal: 14-4663

Doc: 33

Filed: 05/26/2015

Pg: 6 of 6

306 (4th Cir.) (citation omitted), cert. denied, 135 S. Ct. 421
(2014).
We conclude that Reyna has failed to rebut the presumed
reasonableness of his within-Guidelines sentence.

The district

court weighed Reyna’s lack of a criminal history against the
conduct underlying his convictions and concluded that a sentence
within the Guidelines range was necessary to reflect the serious
nature of the offense and to protect the public and provide
general deterrence.
Accordingly, we affirm the district court’s judgment.
dispense

with

oral

argument

because

the

facts

and

We

legal

contentions are adequately presented in the material before this
court and argument will not aid the decisional process.

AFFIRMED

6