United States v. Barajas

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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Barajas, No. 04-4170 (4th Cir. Oct. 28, 2005) (unpublished).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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