United States v. Enriquez

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4013
CARLOS ENRIQUEZ,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4127
ARTURO GONZALES,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-00-85-F)

Submitted: April 29, 2002

Decided: June 4, 2002

Before WIDENER, NIEMEYER, and GREGORY, Circuit Judges.

No. 01-4013 affirmed in part and dismissed in part and No. 01-4127
dismissed by unpublished per curiam opinion.
2 UNITED STATES v. ENRIQUEZ
COUNSEL

W.H. Paramore, III, Jacksonville, North Carolina; Carlton M. Mans-
field, CHAVIS & RANSOM, Lumberton, North Carolina, for Appel-
lants. John Stuart Bruce, United States Attorney, Anne M. Hayes,
Assistant United States Attorney, Jane J. Jackson, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

OPINION

PER CURIAM:

Carlos Enriquez (No. 01-4013) and Arturo Gonzales (No. 01-4127)
appeal their convictions and sentences for conspiring to possess with
intent to distribute at least 100 kilograms of marijuana, in violation
of 21 U.S.C. § 846 (1994).* Enriquez entered a guilty plea on August
21, 2000 without the benefit of a plea agreement, and Gonzales
entered a guilty plea on the same day pursuant to a written plea agree-
ment in which he waived his right to appeal his sentence on any
ground except an upward departure from the sentencing guidelines by
the district court. The district court imposed 135-month and 86-month
sentences on Enriquez and Gonzales, respectively, and they each
appealed.

Each defendant’s appeal raises only sentencing issues. In No. 01-
4013, Enriquez renews a written objection to his pre-sentence report
that he failed to raise at his sentencing hearing: that his offense level
should not have been enhanced by two levels for his leadership role
in the conspiracy pursuant to United States Sentencing Guidelines

*Enriquez also pled guilty to the second count of the indictment,
charging him with possession of the marijuana in question with intent to
distribute in violation of 21 U.S.C.A. § 841 (West 1999 & Supp. 2001).
 UNITED STATES v. ENRIQUEZ 3
Manual § 3B1.1(c) (2000). Enriquez also challenges the district
court’s determinations as to the acceptance of responsibility offense
level adjustment and its decision not to depart downward. In No. 01-
4127, Gonzales (despite his waiver of his right to appeal), challenges
only the extent of the district court’s downward departure.

Enriquez’s initial objection, challenging application of an offense
level enhancement for his supervisory role pursuant to § 3B1.1(c),
fails to demonstrate plain error. While Enriquez claims the acquittal
of Bernardo Valdes, a co-conspirator named in the same indictment
returned against Enriquez, indicates Valdes cannot be "criminally
responsible," and thus "supervised" by Enriquez within the meaning
of § 3B1.1, we find neither Valdes’ acquittal nor Enriquez’s related
arguments on this issue demonstrate plain error. See United States v.
Wells, 163 F.3d 889, 900 (4th Cir. 1998); United States v. Haun, 90
F.3d 1096, 1103 (6th Cir. 1996).

Enriquez’s second objection, that the district court improperly
denied a downward adjustment to his offense level for acceptance of
responsibility under USSG § 3E1.1, is also meritless. The district
court imposed an obstruction of justice enhancement to Enriquez’s
offense level under USSG § 3C1.1, because Enriquez attempted to
influence his co-conspirators’ cooperation with the Government, and
because Enriquez perjured himself at Valdes’ trial. While Enriquez
acknowledges that downward adjustments under § 3E1.1 are ordinar-
ily incompatible with enhancements under § 3C1.1, Enriquez con-
tends the district court was required to make findings in accordance
with United States v. Dunnigan, 507 U.S. 87, 92-98 (1993), in order
to deny the § 3E1.1 adjustment based on his perjured testimony. That
claim overlooks an independent basis for applying a § 3C1.1 enhance-
ment: that Enriquez attempted to tamper with his co-conspirators’
statements to the Government. Because there is an independent basis
for sustaining Enriquez’s § 3C1.1 enhancement, and Enriquez’s
behavior after pleading guilty indicates the district court did not err
in concluding Enriquez did not completely accept responsibility, we
find no error in the denial of a downward adjustment under § 3E1.1.

Enriquez’s third assignment of error is dismissed. The district
court’s statements in denying Enriquez’s request for a downward
departure based on his health and alienage do not indicate a misappre-
4 UNITED STATES v. ENRIQUEZ
hension of its authority to depart. See United States v. Rowen, 73 F.3d
1061, 1063 (10th Cir. 1996). As a result, that claim is unreviewable.
See United States v. Aramony, 166 F.3d 655, 664-65 (4th Cir. 1999).

Finally, Gonzales’ sole claim on appeal, challenging the extent of
the district court’s downward departure, is also unreviewable. Gon-
zales executed a knowing and voluntary waiver of his right to appeal
this issue, see United States v. Wessells, 936 F.2d 165, 167-68 (4th
Cir. 1991), and Gonzales offers no independent basis to question the
legality of his sentence, see United States v. Brown, 232 F.3d 399,
403 (4th Cir. 2000); United States v. Attar, 38 F.3d 727, 732-33 (4th
Cir. 1994); United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).

Accordingly, we affirm in part and dismiss in part as to Enriquez’s
appeal of his sentence in No. 01-4013, and dismiss Gonzales’ appeal
in No. 01-4127 based on his waiver of appellate rights in his plea
agreement. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

No. 01-4013 - AFFIRMED IN PART,
DISMISSED IN PART

No. 01-4127 - DISMISSED