UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4271
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARIO ALBERTO GARCIA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:10-cr-00765-TLW-1)
Submitted: September 24, 2013 Decided: September 26, 2013
Before NIEMEYER and THACKER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Debra Y. Chapman, DEBRA CHAPMAN, PA, Columbia, South Carolina,
for Appellant. Arthur Bradley Parham, Assistant United States
Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mario Alberto Garcia pleaded guilty to conspiracy to
possess with intent to distribute and distribution of five
kilograms or more of powder cocaine, fifty grams or more of
crack cocaine, and a quantity of marijuana. He received a
200-month sentence. On appeal, counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that there are no meritorious grounds for appeal, but raising
the following issues: (1) whether the district court suggested
to Garcia that he was pleading guilty to a lesser included
offense during the Fed. R. Crim. P. 11 proceeding; and
(2) whether the court erred in applying an enhancement for
having an aggravated role in the offense. Garcia has filed a
pro se supplemental brief. The Government declined to file a
response. We affirm.
Because Garcia did not move to withdraw his plea, we
review his Rule 11 hearing for plain error. United States v.
Martinez, 277 F.3d 517, 525 (4th Cir. 2002). The district court
conducted the change of plea hearing for Garcia and Garcia’s co-
defendant, Mr. Ramirez. At one instance, the court referred to
Mr. Ramirez as Mr. Garcia. Ramirez was pleading guilty to a
lesser included offense. Therefore, Garcia contends he was
confused regarding the charge to which he was pleading guilty.
Although the district court referred to Ramirez as Garcia one
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single time, the transcript clearly indicates that the proper
charge was given to Garcia and that he understood the charge to
which he was pleading guilty. Further, Garcia does not argue
that he would have withdrawn his plea had he fully understood
that he was not pleading guilty to a lesser included offense.
Given no indication to the contrary, we therefore find that
Garcia’s plea was knowing and voluntary, and, consequently,
final and binding. See United States v. Lambey, 974 F.2d 1389,
1394 (4th Cir. 1992) (en banc).
Counsel next raises whether the district court erred
in applying a three-level enhancement under U.S. Sentencing
Guidelines Manual § 3B1.1(b) (2010) for being a manager or
supervisor. We review a district court’s application of the
Sentencing Guidelines de novo and its factual findings for clear
error. United States v. Mehta, 594 F.3d 277, 281 (4th Cir.
2010). A defendant qualifies for a three-level enhancement if
he was “a manager or supervisor (but not an organizer or leader)
and the criminal activity involved five or more participants or
was otherwise extensive.” USSG § 3B1.1(b). To qualify as a
manager or supervisor, the defendant need only have exercised
control over one participant. USSG § 3B1.1, cmt. n.2. In
determining a defendant’s leadership role, a court should
consider seven factors:
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the exercise of decision making authority, the nature
of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense,
the nature and scope of the illegal activity, and the
degree of control and authority exercised over others.
USSG § 3B1.1, cmt. n.4; see also United States v. Sayles, 296
F.3d 219, 224 (4th Cir. 2002).
We conclude that the district court did not err in
assessing a three-level enhancement for Garcia’s role in the
conspiracy. First, the evidence clearly showed that the
criminal activity involved at least five people named in the
conspiracy, plus numerous unnamed individuals and was extensive.
The evidence also showed that Garcia exercised control over
several participants. The court found that Garcia exercised
decision-making authority by directing others to deliver drugs,
to protect Garcia, and to protect and operate drug houses.
Garcia filed a supplemental brief arguing that the
two-level enhancement for possession of a firearm under USSG
§ 2D1.1(b)(1) should not have applied, that his statutory
mandatory minimum was improperly increased, in light of Alleyne
v. United States, 133 S. Ct. 2151, 2155, 2163-64 (2013) (holding
that any fact that increases the statutory mandatory minimum is
an element of the offense and must be submitted to the jury and
found beyond a reasonable doubt), and that counsel was
ineffective for failing to secure a sentence reduction based on
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substantial assistance to the Government. In accordance with
Anders, we have reviewed these issues and the record in this
case, and have found no meritorious issues for appeal. We
therefore affirm Garcia’s conviction and sentence. This court
requires that counsel inform Garcia, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Garcia 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 Garcia.
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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