United States v. Juan Cesar Valle-Barrera ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4239
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN CESAR VALLE-BARRERA,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Frank D. Whitney, Chief District Judge. (3:16-cr-00201-FDW-DCK-4)
Submitted: March 29, 2018 Decided: April 2, 2018
Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
D. Baker McIntyre, III, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juan Cesar Valle-Barrera pled guilty, pursuant to a written plea agreement, to
conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i), (h)
(2012). The district court sentenced Valle-Barrera to 78 months’ imprisonment. Valle-
Barrera timely appealed.
Pursuant to Anders v. California, 386 U.S. 738 (1967), Valle-Barrera’s counsel has
filed a brief certifying that there are no meritorious grounds for appeal, but questioning (1)
the drug quantity attributed to Valle-Barrera, (2) the district court’s application of a U.S.
Sentencing Guidelines Manual § 2S1.1(b)(2)(B) (2016) enhancement, (3) the district
court’s denial of a USSG § 2D1.1(b)(17) safety valve reduction, and (4) the district court’s
denial of a USSG § 3B1.2(b) minor participant role reduction. Although notified of his
right to file a pro se brief, Valle-Barrera has not done so. We affirm.
We review the reasonableness of Valle-Barrera’s sentence for abuse of discretion.
United States v. Lymas, 781 F.3d 106, 111 (4th Cir. 2015). In determining procedural
reasonableness, we consider whether the district court properly calculated the Sentencing
Guidelines range, allowed the parties to argue for an appropriate sentence, considered the
18 U.S.C. § 3553(a) (2012) factors, and sufficiently explained the selected sentence. Gall
v. United States, 552 U.S. 38, 49-51 (2007). “In assessing the district court’s calculation
of the Guidelines range, we review its legal conclusions de novo and its factual findings
for clear error,” finding clear error only if “on the entire evidence[,] [we] [are] left with the
definite and firm conviction that a mistake has been committed.” United States v. Cox, 744
F.3d 305, 308 (4th Cir. 2014) (internal quotation marks omitted).
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Anders counsel first contests the drug quantity of over 5 but less than 15 kilograms
of cocaine on the ground that only 28 grams of cocaine were found at Valle-Barrera’s
residence. Valle-Barrera stipulated to a drug quantity of over 5 but less than 50 kilograms
of cocaine in his plea agreement. In challenging the presentence report’s assessed drug
quantity of 29.5 kilograms of cocaine, Valle-Barrera contended that the drug quantity
should be over 5 but less than 15 kilograms. Further, law enforcement found kilogram
wrappers at Valle-Barrera’s residence, thereby establishing a drug quantity greater than the
28 grams found at Valle-Barrera’s residence. Thus, this argument lacks merit.
Next, Anders counsel challenges the district court’s application of a USSG
§ 2S1.1(b)(2)(B) enhancement for being convicted of money laundering. The two-level
enhancement applies “[i]f the defendant was convicted under 18 U.S.C. § 1956.” USSG
§ 2S1.1(b)(2)(B). However, the enhancement is not applicable “if the defendant was
convicted of a conspiracy under 18 U.S.C. § 1956(h) and the sole object of that conspiracy
was to commit an offense set forth in 18 U.S.C. § 1957” (engaging in monetary transactions
in property derived from specified unlawful activity). USSG § 2S1.1 cmt. n.3(C). We
conclude that the enhancement was appropriate because Valle-Barrera was convicted
pursuant to 18 U.S.C. § 1956(h); committing an offense under 18 U.S.C. § 1957 (2012)
was not the sole purpose of the conspiracy.
Counsel also questions the district court’s determination that Valle-Barrera was
ineligible for a USSG § 2D1.1(b)(17) safety valve reduction because he possessed a firearm
in connection with the offense. When a “defendant meets the criteria set forth in
subdivisions (1)-(5) of subsection (a) of § 5C1.2,” he receives a two-level offense level
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reduction. USSG § 2D1.1(b)(17). “To receive the reduction, a defendant must prove by a
preponderance of the evidence that he . . . satisfies each of § 5C1.2(a)’s five criteria.”
United States v. Bolton, 858 F.3d 905, 913 (4th Cir. 2017). One of these criteria is that the
defendant did not possess a firearm in connection with the offense. USSG § 5C1.2(a)(2).
We perceive no error in the district court’s denial of the reduction. Law enforcement
found firearms in addition to cocaine, kilogram wrappers, and ammunition at Valle-
Barrera’s residence. “In circumstances where the underlying offense is conspiracy to
distribute drugs, we have held that discovery of a weapon in a place where the conspiracy
was carried out or furthered is sufficient to link the weapon to the conspiracy.” Bolton,
858 F.3d at 912 (internal quotation marks omitted). While defense counsel argued that
Valle-Barrera did not know of the firearms in his residence, Valle-Barrera did not present
any evidence to support this assertion, thus failing to sustain his burden of demonstrating
that he did not possess the firearms in connection with the offense. See Bolton, 858 F.3d
at 912 (after Government satisfies burden of proving possession of firearm in connection
with drug activities, defendant may avoid enhancement by showing weapon’s link to drug
activities was “clearly improbable.”).
Finally, counsel points to the district court’s denial of a two-level USSG § 3B1.2(b)
minor role reduction. A defendant bears the burden of demonstrating by a preponderance
of the evidence that he merits a mitigating role adjustment. United States v. Powell, 680
F.3d 350, 358-59 (4th Cir. 2012). “Section 3B1.2 of the Sentencing Guidelines provides
for various reductions to a defendant’s offense level if the defendant ‘played a part in
committing the offense that makes him substantially less culpable than the average
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participant’” in the criminal activity. Id. at 358 (quoting USSG § 3B1.2 cmt. n.3(A))
(alteration omitted). A defendant may receive a two-level reduction if he was a minor
participant. USSG § 3B1.2. The inquiry should be fact-specific and based on the totality
of the circumstances and courts should not deny a mitigating role reduction merely because
the defendant played an essential or indispensable role in the offense. USSG § 3B1.2 cmt.
n.3(C). The district court did not err in denying Valle-Barrera a minor role reduction
because the factual basis and defense counsel’s statements at sentencing established that
Valle-Barrera substantially contributed to the money laundering scheme.
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds for appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Valle-Barrera, in writing, of the right to petition the
Supreme Court of the United States for further review. If Valle-Barrera requests that a
petition be filed, but counsel believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Valle-Barrera.
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.
AFFIRMED
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