United States v. Molina

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4917

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

EMILIO MOLINA,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Cameron McGowan Currie, District
Judge. (0:07-cr-00043-CMC-1)

Submitted: June 9, 2008 Decided: July 10, 2008

Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Margaret A. Chamberlain, CHAMBERLAIN LAW FIRM, Greenville, South
Carolina, for Appellant. Robert Frank Daley, Jr., Assistant United
States Attorney, James Chris Leventis, Jr., OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Emilio Molina pleaded guilty, pursuant to a plea

agreement, to one count of conspiracy to possess with intent to

distribute and to distribute fifty grams or more of methamphetamine

and 500 grams or more of a mixture or substance containing a

detectable amount of methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A), 846 (2000). The district court sentenced

Molina to 121 months of imprisonment. On appeal, counsel filed an

Anders1 brief in which she states there are no meritorious issues

for appeal, but questions whether the district court erred in

determining the drug quantity attributed to Molina and in

converting the quantities of actual methamphetamine and

methamphetamine mixture to marijuana equivalents to determine

Molina’s offense level. Molina was advised of his right to file a

pro se supplemental brief, but has not filed a brief. The

Government waived the filing of a brief on appeal. We affirm.

In the presentence report (PSR), the probation officer

concluded that Molina was responsible for 39.4 grams of actual

methamphetamine and 456 grams of a mixture containing

methamphetamine. These quantities yielded a marijuana equivalency

of 1700 kilograms.2 On appeal, counsel argues that, even though

1
Anders v. California, 386 U.S. 738 (1967).
2
The Guidelines equate one gram of actual methamphetamine to
twenty kilograms of marijuana, while one gram of methamphetamine
mixture is equivalent to two kilograms of marijuana. U.S.

- 2 -
Molina pleaded guilty to a conspiracy involving more than 500 grams

of a mixture containing methamphetamine, he could not be guilty of

that crime because the amount of methamphetamine mixture attributed

to him for sentencing was less than 500 grams. Counsel also

asserts that the district court erred in converting methamphetamine

quantities into marijuana equivalency.

This court reviews the sentence imposed by the district

court for an abuse of discretion. Gall v. United States, 128 S.

Ct. 586, 597 (2007). A sentence imposed within the properly

calculated Guidelines range is presumptively reasonable. United

States v. Go, 517 F.3d 216, 218 (4th Cir. 2008); see Rita v. United

States, 127 S. Ct. 2456, 2462-69 (2007) (upholding presumption of

reasonableness for within-Guidelines sentence). In considering the

district court’s application of the Guidelines, we review factual

findings for clear error and legal conclusions de novo. United

States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006).

Molina does not specifically contest the drug quantities

used in calculating his offense level. Such an argument would be

meritless, as Molina specifically admitted involvement with this

quantity of methamphetamine during the plea inquiry. To the extent

Molina asserts a defect in the indictment or an inadequate factual

basis for his guilty plea, these arguments are waived. A defendant

Sentencing Guidelines Manual (USSG) § 2D1.1, Drug Equivalency
Tables (2006).

- 3 -
who pleads guilty waives “all non-jurisdictional defects, including

the right to contest the factual merits of the charges.” United

States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993) (internal

citations and quotation marks omitted). In this case, the

indictment validly charged an offense and the district court

conducted a thorough inquiry pursuant to Federal Rule of Criminal

Procedure 11 that verified that Molina’s guilty plea was knowing

and voluntary.

Molina was convicted and sentenced within the terms of

the applicable statutory provision. The indictment charged Molina

with possessing with intent to distribute 500 grams or more of a

mixture and substance containing a detectable amount of

methamphetamine. On this charge, Molina was subject to a

punishment of not less than ten years to life imprisonment,

pursuant to 21 U.S.C. § 841(b)(1)(A). Molina’s sentence of 121

months of imprisonment is within this statutory range and the

properly calculated Guidelines range.

Molina’s claim regarding the conversion of drug

quantities to marijuana equivalent is meritless. Counsel asserts

that Molina was not involved in any transactions in marijuana, and

should thus not be held responsible for that drug. Despite the

district court’s explanation, Molina misunderstands the Guidelines

scheme for determining the offense level when different types of

drugs are involved in a crime. The probation officer complied with

- 4 -
the Guidelines, which instruct that “[w]here there are multiple

transactions or multiple drug types, the quantities of drugs are to

be added. Tables for making the necessary conversions are provided

below.” USSG § 2D1.1 comment. (n.6).

In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal. We

therefore affirm Molina’s conviction and sentence. This court

requires that counsel inform Molina, in writing, of the right to

petition the Supreme Court of the United States for further review.

If Molina 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 Molina. 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

- 5 -