United States v. Luis Areyanes , 587 F. App'x 55 ( 2014 )

UNPUBLISHED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: October 15, 2014
Before SHEDD, AGEE, and DIAZ, Circuit Judges.
No. 13-4922 dismissed; No. 13-4939 affirmed by unpublished per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Unpublished opinions are not binding precedent in this circuit.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 21 U.S.C. §§ 841(b)(1)(C), 846 (2012), and
possession of a firearm during a drug trafficking crime and
aiding and abetting such conduct, in violation of 18 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. At the Rule 11 hearing,
the district court reviewed the appeal waiver and Luis
acknowledged that he understood it.
The Government seeks to enforce Luis’s appeal waiver.
A defendant may waive his appellate rights under 18 U.S.C.
§ 3742 (2012). United States v. Manigan, 592 F.3d 621, 627 (4th
Cir. 2010). 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 appellate waiver is valid if “the defendant
knowingly and intelligently agreed to waive the right to
appeal.” Id. at 169. This determination, often 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 [the] case, including the background, experience,
and conduct of the accused.” Id. (internal quotation marks
omitted). “Generally, if a district court questions a defendant
regarding 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. Ct. 126 (2013) (internal quotation marks
omitted).
We have reviewed the record and considered Luis’s
arguments against enforcement of the waiver, and conclude that
the appellate waiver was knowing, voluntary and therefore,
enforceable. Because Luis’s issues on appeal 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 claims that the district court erred by
converting currency seized at his apartment into a cocaine
equivalency. 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., clear or obvious), and (3) affects
substantial rights.” 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 has filed a motion for leave to file a pro se
supplemental brief. Because Luis is represented by counsel and
this appeal is not submitted pursuant to Anders v. California,
386 U.S. 738 (1967), the motion is denied. See United States v.
Penniegraft, 641 F.3d 566, 569 n.1 (4th Cir. 2011).
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of $1,200 per 28.35 grams of cocaine.” J.A. at 216. Pursuant
to Federal Rule of Criminal Procedure 32(i)(3)(A), the
sentencing court “may accept any undisputed portion of the
presentence report as a finding of fact.” 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. See United States v. Randall, 171 F.3d 195, 210–11 (4th
Cir. 1999)(stating that “[i]f the district court relies on
information in the presentence report (PSR) in making findings,
the defendant bears the burden of establishing that the
information relied on by the district court in making its
findings is incorrect”). We therefore find no error, plain or
otherwise, on this record.
Cesar further contends that we should remand his
sentence to the district court for resentencing in light 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 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.
No. 13-4922 DISMISSED
No. 13-4939 AFFIRMED
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