United States v. Reyes , 49 F. App'x 468 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
CARLOS REYES, a/k/a Pedro Carlos  No. 01-4086
Manuel Reyes-Lopez, a/k/a Pedro
Reyes-Lopez, a/k/a Edwardo
Gomez, a/k/a Edwardo Ocasio,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-00-109)
Argued: June 6, 2002
Decided: October 31, 2002
Before MOTZ and TRAXLER, Circuit Judges, and
Claude M. HILTON, Chief United States District Judge
for the Eastern District of Virginia,
sitting by designation.
Affirmed by unpublished opinion. Chief Judge Hilton wrote the opin-
ion, in which Judge Motz and Judge Traxler joined.
COUNSEL
ARGUED: Jacqueline Ann Hallinan, HALLINAN LAW OFFICE,
Charleston, West Virginia, for Appellant. Monica Kaminski
2 UNITED STATES v. REYES
Schwartz, Assistant United States Attorney, Charleston, West Vir-
ginia, for Appellee. ON BRIEF: Mary Lou Newberger, Acting Fed-
eral Public Defender, Brian J. Kornbrath, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T. Mil-
ler, United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
HILTON, Chief District Judge:
This case is before the Court on Carlos Reyes’ appeal of his con-
viction and sentencing on one count of conspiracy to distribute
cocaine base, cocaine and marijuana in violation of 21 U.S.C. § 846,
and one count of illegal re-entry by an alien after deportation for a
heroin offense in violation of 21 U.S.C. §§ 1326(a) and (b)(2).
Reyes’ attorney filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), asserting that the district court erred during Reyes’
plea hearing when it failed to advise Reyes that a jury must come to
a unanimous guilty verdict in order to convict him, and that the dis-
trict court further erred during Reyes’ sentencing hearing when it
enhanced his sentence due to his leadership role in the conspiracy.
Reyes then filed pro se a Memorandum of Law raising the issue of
whether the Southern District of West Virginia was the appropriate
venue for charging him with illegal re-entry by an alien after deporta-
tion for a heroin offense in violation of 21 U.S.C. §§ 1326(a) and
(b)(2). Supplemental briefs were filed on the issue of venue. Finding
no error, we affirm.
Reyes is a citizen of the Dominican Republic. He illegally entered
the United States via San Juan, Puerto Rico. In August 1990, he
gained lawful permanent residence status pursuant to the amnesty
legalization program set forth in the Immigration Reform and Control
UNITED STATES v. REYES 3
Act of 1986. See 8 U.S.C. § 1255a. Reyes was convicted in New York
in 1996 of selling heroin, and was subsequently deported in Septem-
ber 1997 back to his homeland. Approximately one month later, he
re-entered this country using an altered passport.
On April 24, 2000, Reyes was arrested in New York pursuant to
a warrant issued by the United States District Court for the Southern
District of West Virginia charging him with conspiring to distribute
cocaine and cocaine base. In the District Court for the Southern Dis-
trict of New York, Reyes waived his Rule 40 hearing, and thereafter
was removed to the charging district to await an indictment.
Reyes was indicted on August 17, 2000 on two counts in the
Southern District of West Virginia. The first count charged him with
conspiracy to distribute cocaine base, cocaine and marijuana in viola-
tion of 21 U.S.C. § 846, and the second count charged him with ille-
gal re-entry by an alien after deportation for a heroin offense in
violation of 21 U.S.C. §§ 1326(a) and (b)(2). Reyes pled guilty to
both counts on September 19, 2000. During the plea hearing, the dis-
trict court advised Reyes of his right to a jury trial as well as his other
associated rights. Reyes told the district court that he understood the
enumerated rights and intended to waive them by entering a guilty
plea.
The Pre-sentence Report recommended Reyes be assessed a two
(2) level enhancement for his leadership role in the offense. Since
Reyes objected to the enhancement, an evidentiary hearing was held.
A co-conspirator, Angel Fuentes, testified that he worked for Reyes
accepting and counting drug proceeds among other tasks, and that
Reyes was responsible for tending to clients’ needs, setting prices,
paying runners and providing runners with directions on distribution.
Fuentes also indicated that Reyes was left "in charge of everything"
when Reyes’ business partner was out of town. A second co-
conspirator, Alphonso Rodriguez, testified providing much of the
same information. Another witness testified that Fuentes and Rodri-
guez were introduced to him as "drug runners" for Reyes.
At the conclusion of the hearing, the district court found the base
offense level for the drug conspiracy to be thirty-eight (38), applied
a two (2) level enhancement for Reyes’ leadership role, and adjusted
4 UNITED STATES v. REYES
the offense level on the unlawful re-entry count to twenty-four (24).
Accordingly, the district court determined Reyes’ criminal history
category to be four (4) since he was a career offender, and found the
combined offense level to be forty (40) with a three (3) level reduc-
tion for acceptance of responsibility thereby producing a guideline
imprisonment range of three hundred and sixty (360) months to life
with a four hundred and eighty (480) months statutory cap. Reyes was
sentenced to two hundred and forty (240) months on the drug conspir-
acy count and one hundred and twenty (120) months on the illegal re-
entry count, to be served consecutively.
Reyes asserts that his guilty plea must be reversed since the district
court failed to follow the procedures required by Rule 11 of the Fed-
eral Rules of Criminal Procedure. Fed. R. Crim. P. 11(h); see also
United States v. Goins, 51 F.3d 400, 402-403 (4th Cir. 1995). He con-
tends that the right to a unanimous jury verdict is a substantial right
and by failing to inform him of this right, the district court erred.
Rule 11 of the Federal Rules of Criminal Procedure is very specific
and while it requires a defendant be apprised of his right to a jury
trial, it does not require every aspect of a jury trial be explained to a
defendant. See Fed. R. Crim. P. 11. The district court informed Reyes
that by entering a plea he had given up the right to a "speedy and a
public jury trial" as well as many other rights. Reyes responded "Yes,
I know. [My lawyer] explained it well." A guilty plea may be legally
sufficient even when the notice requirements of Rule 11(c) are not
fully articulated by the district court. See United States v. Stead, 746
F.2d 355, 356-357 (6th Cir. 1984), cert. denied, 470 U.S. 1030 (1985)
(holding that the district court’s failure to advise a defendant of his
right against self-incrimination and his right to confront and cross-
examine witnesses did not require his guilty plea be set aside); see
also United States v. Gomez-Cuevas, 917 F.2d 1521, 1529 (10th Cir.
1990) (holding that the district court’s failure to advise the defendant
of his right to confront and cross examine witnesses was a harmless
error where the guilty plea was voluntary and the defendant under-
stood the charges against him). Reyes was fully apprised by the dis-
trict court of his right to be tried by a jury as required by Rule
11(c)(3) of the Federal Rules of Criminal Procedure. The rule does
not require the district court to further apprise the defendant of his
UNITED STATES v. REYES 5
right to a unanimous jury verdict for conviction and therefore, the dis-
trict court did not err when it failed to do so.
Secondly, Reyes contends that the evidence failed to support a
claim that he held a leadership role in the conspiracy, and therefore
the district court erred by assessing him a two (2) level enhancement
during his sentencing. In support of his argument, Reyes contends that
the government’s witnesses provided conflicting testimony and that
such testimony was tainted because each witness received a down-
ward departure from their original sentence for their testimony.
A district court’s factual application of the Sentencing Guidelines
is reviewed by a clearly erroneous standard. See United States v. Col-
ton, 231 F.3d 890 (4th Cir. 2000). The record establishes that Reyes
and his partner were the source of significant quantities of cocaine
base and cocaine, and received and distributed the drugs to other
members of the conspiracy. Furthermore, the evidence shows that
Reyes set prices, gave orders and made payments to runners which
proves that he held a leadership position. A defendant need not con-
trol all aspects of the scheme in order to be properly designated an
"organizer or leader." United States v. Ramos, 932 F.2d 611, 619 (7th
Cir. 1991). In fact, one need not manage or supervise people at all to
be considered a leader, but simply by managing or supervising
money, property or operations one may be deemed a leader. See
United States v. Chambers, 985 F.2d 1263, 1267 (4th Cir. 1992), cert.
denied, 510 U.S. 834 (1993). Therefore, as one who set the prices and
managed the money and operations of the conspiracy, the district
court properly assessed Reyes a two (2) level enhancement for his
leadership position.
Lastly, Reyes contends that he did not waive his right to contest
venue during his plea hearing and that venue was improper in the
Southern District of West Virginia for charging him with illegal re-
entry by an alien after deportation for a heroin offense in violation of
21 U.S.C. §§ 1326(a) and (b)(2). The question of venue in a criminal
prosecution is reviewed de novo. See United States v. Wilson, 262
F.3d 305, 320 (4th Cir. 2001). Reyes asserts that the district court
instructed him on the elements of the offense, but did not elaborate
on the venue requirement.
6 UNITED STATES v. REYES
If an objection to venue is not clearly raised at the district court
level, then the issue is waived on appeal. See United States v. Stewart,
256 F.3d 231 (4th Cir. 2001) (finding that defendant waived any
objection to improper venue for prosecution by not raising the issue
until the time of his sentencing hearing after conviction). The Second
Circuit has reviewed this issue in United States v. Calderon, 243 F.3d
587 (2nd Cir. 2002), where the defendant was charged with being
"found" in the United States after illegal re-entry, in violation of 18
U.S.C. § 1326 similar to the facts here. In Calderon, the defendant
moved to dismiss the indictment based upon improper venue and
when the motion was denied, he proceeded with a guilty plea. The
defendant then appealed the district court’s decision and the appellate
court found the defendant had waived his objection to venue when he
pled guilty. Since Reyes failed to raise venue before his plea, he is
now barred from an argument that venue was not presented by the
government and therefore he was not able to execute a waiver.
The record is clear that Reyes did not contest venue when he
appeared before the district court, but rather he entered a guilty plea
that contained no conditions. Reyes’ entry of a guilty plea constitutes
a waiver to any objection he had as to whether venue was proper in
the Southern District of West Virginia in order to charge him with
illegal re-entry by an alien after deportation for a heroin offense in
violation of 21 U.S.C. §§ 1326 (a) and (b)(2).
AFFIRMED