UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4301
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALEXANDER BARAJAS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
Senior District Judge. (1:03-cr-00268-FWB-AL)
Submitted: September 29, 2006 Decided: October 17, 2006
Before TRAXLER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Christopher R. Clifton, GRACE, HOLTON, TISDALE & CLIFTON, P.A.,
Winston-Salem, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, Randall S. Galyon, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Alexander Barajas was sentenced to ninety-one months
imprisonment for conspiracy to possess with intent to distribute in
excess of 100 kilograms of marijuana, in violation of 21 U.S.C.
§§ 841(a), 846 (2000). We affirmed his conviction, vacated the
sentence, and remanded for further proceedings consistent with
United States v. Booker, 543 U.S. 220 (2005), and United States v.
Hughes, 401 F.3d 540, 546 (4th Cir. 2005). See United States v.
Barajas, No. 04-4170 (4th Cir. Oct. 28, 2005) (unpublished). On
remand, the district court resentenced Barajas to eighty-four
months imprisonment. Barajas again appeals, contending, first,
that the district court erred in denying a minor role reduction,
pursuant to U.S. Sentencing Guidelines Manual § 3B1.2 (2005). A
defendant’s role in the offense is a factual question reviewed for
clear error. United States v. Sayles, 296 F.3d 219, 224 (4th Cir.
2002). The defendant has the burden to show that he is entitled to
a minor role adjustment. United States v. Akinkoye, 185 F.3d 192,
202 (4th Cir. 1999). The district court should examine the
defendant’s conduct relative to that of other defendants and to the
elements of the offense of conviction. Id. The critical inquiry
is whether the defendant’s conduct is material or essential to the
commission of the offense. Id. Because Barajas admitted that he
agreed to drive a tractor-trailer containing over 370 kilograms of
marijuana from Los Angeles to North Carolina, we find that the
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district court’s refusal to grant a minor role adjustment was not
clearly erroneous.
Next, Barajas argues that the district court erred in
refusing to apply the safety valve provision under 18 U.S.C.
§ 3553(f), USSG § 5C1.2. To qualify for sentencing under the
safety valve provision, a defendant must meet all five criteria set
out in USSG § 5C1.2(a)(1)-(5). The fifth criteria is that, by the
time of sentencing, the defendant has truthfully provided to the
Government all information and evidence in his possession
concerning the offense. Here, Barajas provided conflicting
information about the role of a co-defendant. The district court
noted at Barajas’ re-sentencing hearing that Barajas had provided
false testimony at his co-defendant’s sentencing hearing.
Accordingly, we find that the district court did not clearly err in
refusing to apply the safety valve reduction.
Finally, Barajas argues that his sentence is
unreasonable. After the Supreme Court’s decision in Booker, a
sentencing court is no longer bound by the range prescribed by the
Sentencing Guidelines. Hughes, 401 F.3d at 546. In determining a
sentence post-Booker, however, sentencing courts are still required
to calculate and consider the guideline range prescribed thereby as
well as the factors set forth in 18 U.S.C.A. § 3553(a). Id. If
the sentence imposed is within the properly calculated guideline
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range, it is presumptively reasonable. United States v. Green, 436
F.3d 449, 455-56 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).
Here, the district court appropriately treated the
guidelines as advisory and properly calculated and considered the
guidelines range as well as the relevant factors under § 3553(a).
Barajas’ sentence is below the statutory maximum of forty years
imprisonment. Barajas contends that the sentence was unreasonable
because it was greater than necessary to achieve the congressional
sentencing objectives set forth in 18 U.S.C. § 3553(a)(2).
However, his claims are not adequate to rebut the presumption that
the sentence within the guidelines range is reasonable. See Green,
436 F.3d at 456-57. We conclude that the sentence imposed by the
district court was reasonable.
Accordingly, we affirm Barajas’ sentence. 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.
AFFIRMED
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