US v. Alfredo Vergara-Escobar

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:13-cr-00012-MFU-1. Copies to all parties and the district court.[999609196]. [14-4682]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4682

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALFREDO VERGARA-ESCOBAR, a/k/a Flaco,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.
Michael F. Urbanski,
District Judge. (5:13-cr-00012-MFU-1)

Submitted:

June 19, 2015

Before KEENAN
Circuit Judge.

and

DIAZ,

Decided:

Circuit

Judges,

and

June 25, 2015

DAVIS,

Senior

Affirmed by unpublished per curiam opinion.

Charles M. Henter, HENTERLAW, PLC, Charlottesville, Virginia,
for Appellant.
Anthony P. Giorno, Acting United States
Attorney, Grayson A. Hoffman, Assistant United States Attorney,
Harrisonburg, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
A jury convicted Alfredo Vergara-Escobar of conspiracy to
distribute methamphetamine, 21 U.S.C. § 846 (2012), and three
counts of distribution of methamphetamine, 21 U.S.C. § 841(a)(1)
(2012).

The

Guidelines

range

Vergara-Escobar

court
to

sentenced
292

argues

Vergara-Escobar

months’

that

the

within

imprisonment.
district

On

court

the

appeal,

violated

his

constitutional rights by enhancing his sentence on the basis of
a prior conviction that was neither alleged in the indictment
nor

proven

by

a

reasonable

doubt.

He

further

contests

the

district court’s imposition of a three-level enhancement based
on his role as a manager or supervisor in the offense.

We

affirm.
We review a sentence for reasonableness under a deferential
abuse-of-discretion standard.
38, 41, 51 (2007).

Gall v. United States, 552 U.S.

This review entails appellate consideration

of both the procedural and substantive reasonableness of the
sentence.

Id. at 51.

court

properly

range

and

gave

appropriate
considered
arguments

calculated
the

18

presented

the

parties

sentence,
the

After determining whether the district

we

an

analyze

U.S.C.
by

defendant’s

the

advisory

opportunity
whether

§ 3553(a)
parties,

to

the

(2012)
selected

Guidelines

argue

for

district

factors
a

an

court

and

any

sentence

not

based on “clearly erroneous” facts, and sufficiently explained
2

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the selected sentence.

Pg: 3 of 5

Id. at 49-51; United States v. Carter,

564 F.3d 325, 328-30 (4th Cir. 2009).
of

“significant

reasonableness

procedural
of

the

error,”

sentence,

totality of the circumstances.”
sentence

within

presumptively

a

properly

If the sentence is free

we

review

“tak[ing]

into

substantive
account

the

Gall, 552 U.S. at 51.

calculated

substantively

the

Guidelines

reasonable.

Any

range

United

is

States v.

Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct.
421 (2014).
Relying
(2013),

on

Alleyne

Vergara-Escobar

v.

United

first

States,

argues

that

133
the

S.

Ct.

district

2151
court

violated his Fifth and Sixth Amendment rights by increasing his
mandatory
factfinding

statutory
of

a

minimum

prior

sentence

conviction.

based

on

Contrary

judicial

to

Vergara-

Escobar’s assertions, there was no error, plain or otherwise, in
the district court’s imposition of the enhanced penalty.
United

States

v.

Higgs,

353

F.3d

281,

324

(4th

Cir.

See
2003)

(reviewing for plain error a constitutional claim raised for the
first time on appeal).
In Alleyne, the Supreme Court held that the Sixth Amendment
requires a jury to find beyond a reasonable doubt any facts that
increase a defendant’s mandatory minimum sentence.
S. Ct. at 2163-64.

Alleyne, 133

The Alleyne Court recognized, and expressly

declined to reconsider, however, a narrow exception that allows
3

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a judge to find that a defendant’s prior conviction occurred.
Id. at 2160 n.1 (citing Almendarez-Torres v. United States, 523
U.S.

224

(1998)).

“Almendarez-Torres

remains

good

law,

and

[this Court] may not disregard it unless and until the Supreme
Court holds to the contrary.”
F.3d

115,

(2015).

124

(4th Cir.

United States v. McDowell, 745

2014),

cert.

denied,

135

S. Ct.

942

We therefore reject this argument.

Vergara-Escobar also contends that the district court erred
in applying a three-level enhancement for his role as a manager
or

supervisor

in

Guidelines

Manual

imposition

of

a

the
§

offense

3B1.1(b)

role

pursuant
(2013).

adjustment

reviewed for clear error.

is

to
The

a

U.S.

Sentencing

district

factual

court’s

determination

United States v. Cabrera-Beltran, 660

F.3d 742, 756 (4th Cir. 2011).

The adjustment applies “[i]f the

defendant was a manager or supervisor (but not an organizer or
leader)

and

the

criminal

activity

involved

participants or was otherwise extensive.”

five

or

USSG § 3B1.1(b).

more
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).

4

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In challenging the enhancement, Vergara-Escobar argues, as
he did below, that he was simply a drug supplier who engaged in
common buyer-seller relationships and that his role therefore
did not warrant the enhancement.

We conclude that the district

court did not clearly err in applying the enhancement.
very

least,

there

were

five

participants,

At the

Vergara-Escobar

exercised control over one other co-conspirator, and he directed
further drug activity while he was incarcerated.
Accordingly, we affirm the district court’s judgment.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

5