UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4563
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MOISES ARIAS ALEJO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:14-cr-00004-D-1)
Submitted: March 30, 2015 Decided: April 3, 2015
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jeffrey W. Gillette, GILLETTE LAW FIRM, PLLC, Franklin, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Shailika S. Kotiya, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal grand jury indicted Moises Arias Alejo on one
count of conspiracy to distribute and possess with intent to
distribute 500 grams or more of cocaine, in violation of 21
U.S.C. § 846 (2012); two counts of distribution of cocaine, in
violation of 21 U.S.C. § 841(a)(1) (2012); one count of
distribution of, and possession with intent to distribute,
cocaine, and aiding and abetting the same, in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (2012); and one count of
possession of a firearm by an illegal alien, and aiding and
abetting the same, in violation of 18 U.S.C. §§ 922(g)(5), 924,
and 2 (2012). Without a plea agreement, Alejo pled guilty to
all five counts. The district court sentenced him to 78 months’
imprisonment, the middle of the Sentencing Guidelines range.
Alejo appeals his sentence.
We review Alejo’s sentence for procedural and substantive
reasonableness “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). In
determining procedural reasonableness, we consider whether the
district court properly calculated Alejo’s advisory Guidelines
range, gave the parties an opportunity to argue for an
appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012)
sentencing factors, selected a sentence based on clearly
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erroneous facts, and sufficiently explained the selected
sentence. Id. at 49-51. If the sentence is free of significant
procedural error, we review it for substantive reasonableness,
“tak[ing] into account the totality of the circumstances.” Id.
at 51.
In determining Alejo’s Guidelines range, the district court
adopted the calculations in the presentence investigation report
(“PSR”), including a two-level increase in Alejo’s offense
level, pursuant to U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (2013), for possession of a firearm. Alejo filed
no objections to the PSR. To the extent that Alejo challenges
the § 2D1.1(b)(1) enhancement on appeal, we conclude that he
waived appellate review through his concessions in the district
court that he was subject to the enhancement.
Generally, unpreserved errors in sentencing are reviewed
for plain error. See Fed. R. Crim. P. 52(b); United States v.
Olano, 507 U.S. 725, 731-32 (1993). However, a defendant may
waive appellate review of a sentencing error if he raises and
then knowingly withdraws an objection to the error before the
district court. See United States v. Horsfall, 552 F.3d 1275,
1283 (11th Cir. 2008) (finding that defendant’s withdrawal of
objection to upward departure precluded appellate review of
departure); United States v. Rodriguez, 311 F.3d 435, 437 (1st
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Cir. 2002) (“A party who identifies an issue, and then
explicitly withdraws it, has waived the issue.”)
An appellant is precluded from challenging a waived issue
on appeal. Rodriguez, 311 F.3d at 437. Such a waiver is
distinguishable “from a situation in which a party fails to make
a timely assertion of a right—what courts typically call a
‘forfeiture,’” id. (quoting Olano, 507 U.S. at 733), which, as
noted above, may be reviewed on appeal for plain error. Olano,
507 U.S. at 733-34. “By contrast, waiver is intentional, and
extinguishes an error so that there is no review, because the
defendant has knowingly and personally given up the waived
right.” United States v. Laslie, 716 F.3d 612, 614 (D.C. Cir.
2013) (internal quotation marks and citation omitted).
Here, Alejo did not raise, and then withdraw, an objection
to the § 2D1.1(b)(1) enhancement. However, he clearly was aware
of the enhancement and chose not to challenge it. Prior to the
issuance of the PSR, when seeking a continuance of the
sentencing hearing in light of a pending Guidelines amendment,
Alejo acknowledged that he would probably qualify for a
sentencing enhancement for the firearm officers found in Alejo’s
residence. * After receiving the PSR in which the § 2D1.1(b)(1)
*
Alejo sold cocaine from inside his home and stored cocaine
on his property.
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enhancement was applied, Alejo filed a sentencing memorandum
seeking a downward variance. In his memorandum, he expressly
stated that he did not challenge the Guidelines calculations in
the PSR and acknowledged that there was “ample” legal authority
to support the § 2D1.1(b)(1) enhancement, but he requested that
the firearm not factor into the court’s decision regarding the
variance. At sentencing, he once again stated that he had no
objections to the PSR.
Rather than pursuing a challenge to the firearm
enhancement, Alejo chose to focus his efforts on gaining the
benefit of a proposed Guidelines amendment and seeking a
downward variance. By his repeated acknowledgement of the
§ 2D1.1(b)(1) enhancement and his concessions that it applied to
his case, Alejo demonstrated his deliberate decision not to
contest the enhancement. Under these circumstances, we conclude
that he has waived appellate review of the issue. United States
v. Olejiya, 754 F.3d 986, 993-94 (D.C. Cir. 2014); cf. United
States v. Claridy, 601 F.3d 276, 284 n.2 (4th Cir. 2010) (“When
a claim of constitutional error has been waived, it is not
reviewable on appeal.”).
The remainder of Alejo’s claims concern the substantive
reasonableness of his sentence. Specifically, Alejo argues that
the district erred in considering his possession of a firearm as
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an aggravating factor and that his sentence is unreasonable when
measured against the § 3553(a) factors. He contends that the
court should have granted him a downward variance or, at a
minimum, imposed a sentence at the bottom of the Guidelines
range, because of his lack of a criminal record, the limited
nature of his offense conduct, his personal history, the pending
amendment to the Guidelines, and the disparity between his 78-
month sentence and the 60-month sentence his supplier
subsequently received for trafficking in larger quantities of
cocaine.
We examine the substantive reasonableness of a sentence
under “the totality of the circumstances.” Gall, 552 U.S. at
51; United States v. Howard, 773 F.3d 519, 528 (4th Cir. 2014).
A sentence “within or below a properly calculated Guidelines
range is presumptively reasonable [on appeal].” United States
v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S.
Ct. 421 (2014). Alejo bears the burden to rebut this
presumption “by showing that the sentence is unreasonable when
measured against the . . . § 3553(a) factors.” Id. In
evaluating the sentence for an abuse of discretion, “we give due
deference to the [d]istrict [c]ourt’s reasoned and reasonable
decision that the § 3553(a) factors, on the whole, justified the
sentence.” Gall, 552 U.S. at 59-60. When reviewing for
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substantive reasonableness, “we can reverse a sentence only if
it is unreasonable, even if the sentence would not have been the
choice of the appellate court.” United States v. Yooho Weon,
722 F.3d 583, 590 (4th Cir. 2013) (internal quotation marks
omitted).
The court stated that it had considered all of the
§ 3553(a) sentencing factors, focusing on § 3553(a)(1): the
nature and circumstances of the offenses and Alejo’s history and
characteristics. The court noted that all five of Alejo’s
crimes were serious and he sold drugs on multiple occasions.
The court found it “ridiculous, absurd and aggravating” that
Alejo took his five-year-old son with him on one of his drug
transactions, and considered Alejo’s possession of a firearm to
be an aggravating factor. These considerations weighed against
a downward variance in the court’s view. The court recognized
that Alejo was raised in poverty and had, at least at times,
engaged in lawful employment. However, the court also was
unconvinced that Alejo was “forced into” drug trafficking;
rather, the court concluded that his motivation was greed.
Having considered the parties’ arguments, the record, and the
§ 3553 factors, the court concluded that a sentence in the
middle of the Guidelines range was sufficient, but not greater
than necessary, to comply with the § 3553(a) sentencing goals.
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Alejo fails to rebut the presumption of reasonableness
accorded his within-Guidelines sentence. The court clearly
considered the § 3553(a) factors and gave a reasoned explanation
for the sentence it imposed and its basis for rejecting Alejo’s
arguments for a lesser sentence. Rita v. United States, 551
U.S. 338, 356 (2007). The fact that he disagrees with the
district court does not render the sentence substantively
unreasonable. Cf. Yooho Weon, 722 F.3d at 590. Furthermore,
the fact that the pending Guidelines amendment would have
resulted in a lower Guidelines range does not render
unreasonable the imposed sentence, given that it was based on
the Guidelines in effect at the time of Alejo’s sentencing.
Accordingly, we affirm the criminal judgment. 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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