UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5012
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CESAR SIERRO-PINEDA, a/k/a Desiderio Ramirez Duarte, a/k/a
Desiderio Pineda Duarte,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:11-cr-00022-RLV-1)
Submitted: October 30, 2013 Decided: November 6, 2013
Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Denzil H. Forrester, THE LAW OFFICES OF DENZIL H. FORRESTER,
Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cesar Sierro-Pineda pleaded guilty, pursuant to a
written plea agreement, to conspiracy to distribute and possess
with intent to distribute at least five kilograms of cocaine, at
least fifty grams of actual methamphetamine, and at least 500
grams of a substance containing a detectable amount of
methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846
(2012). The district court sentenced Sierro-Pineda to life
imprisonment. On appeal, counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal, but questioning whether
the district court erred by imposing sentencing enhancements for
Sierro-Pineda’s role in the offense and for possessing a
firearm. In his pro se brief, Sierro-Pineda argues that his
guilty plea was not knowing and voluntary, that the district
court improperly enhanced his sentence in violation of Alleyne
v. United States, 133 S. Ct. 2151 (2013), and that the
Government violated the plea agreement. The Government declined
to file a brief.
We review Sierro-Pineda’s sentence for reasonableness,
“under a deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 41, 51 (2007). In assessing a
challenge to the district court’s application of the Guidelines,
we review the district court’s factual findings for clear error
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and its legal conclusions de novo. United States v. Alvarado
Perez, 609 F.3d 609, 612 (4th Cir. 2010).
First, counsel questions whether the district court
erred in applying a four-level enhancement for Sierro-Pineda’s
role in the offense. The Sentencing Guidelines provide that a
four-level enhancement applies “[i]f the defendant was an
organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive.” U.S. Sentencing
Guidelines Manual (“USSG”) § 3B1.1(a) (2011). Here, the
testimony presented at the sentencing hearing establishes that
the criminal activity involved at least five participants and
that Sierro-Pineda had a leadership role in the drug trafficking
conspiracy by recruiting individuals to transport drugs from
Mexico and distributing drugs through several co-conspirators.
Thus, the district court did not clearly err in finding that
Sierro-Pineda was an organizer or leader in the conspiracy and
in applying the four-level enhancement under USSG § 3B1.1(a).
Counsel next questions the district court’s
application of a two-level enhancement for Sierro-Pineda’s
firearm possession. The Sentencing Guidelines provide that the
enhancement applies “[i]f a dangerous weapon (including a
firearm) was possessed.” USSG § 2D1.1(b)(1). “[P]roof of
constructive possession of the [firearm] is sufficient, and the
Government is entitled to rely on circumstantial evidence to
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carry its burden.” United States v. Manigan, 592 F.3d 621, 629
(4th Cir. 2010). The enhancement is proper when the weapon at
issue “was possessed in connection with drug activity that was
part of the same course of conduct or common scheme as the
offense of conviction,” id. at 628-29 (internal quotation marks
omitted), even in the absence of “proof of precisely concurrent
acts, for example, gun in hand while in the act of storing
drugs, drugs in hand while in the act of retrieving a gun,”
United States v. Harris, 128 F.3d 850, 852 (4th Cir. 1997)
(internal quotation marks omitted). The defendant bears the
burden to show that a connection between his possession of a
firearm and his narcotics offense is “clearly improbable.” Id.
at 852-53. Testimony at Sierro-Pineda’s sentencing established
that firearms are a tool of the drug trafficking trade and that
officers found the firearm in a bedroom in Sierro-Pineda’s
residence; Sierro-Pineda did not demonstrate that the connection
between the firearm and the conspiracy offense was “clearly
improbable.” We therefore discern no clear error in application
of the two-level firearm enhancement.
We have carefully assessed the claims raised in
Sierro-Pineda’s pro se supplemental brief and conclude that they
lack merit. In accordance with Anders, we have reviewed the
record in this case and have found no meritorious issues for
appeal. We therefore affirm Sierro-Pineda’s conviction and
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sentence. We deny without prejudice counsel’s motion to
withdraw. This court requires that counsel inform Sierro-
Pineda, in writing, of the right to petition the Supreme Court
of the United States for further review. If Sierro-Pineda
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may renew his
motion to withdraw. Counsel’s motion must state that a copy
thereof was served on Sierro-Pineda. 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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