UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4663
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SERGIO LOPEZ REYNA, a/k/a La Cra,
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. (5:13-cr-00205-D-1)
Submitted: April 13, 2015 Decided: May 26, 2015
Before AGEE, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Elisa Cyre Salmon, SALMON & GILMORE, LLP, Lillington, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sergio Lopez Reyna appeals the aggregate 171-month, within-
Guidelines sentence imposed following his guilty pleas to
carjacking, in violation of 18 U.S.C. §§ 2119, 2 (2012), and
brandishing a firearm in furtherance of a crime of violence, in
violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), 2 (2012). Reyna
argues on appeal that the district court was required to hold an
evidentiary hearing on the application of the three-level
leadership enhancement, clearly erred when it applied this
enhancement, clearly erred when it refused to apply a two-level
reduction for acceptance of responsibility, and imposed a
substantively unreasonable sentence. We affirm.
Reyna first challenges the district court’s failure to
conduct an evidentiary hearing on his objection to the
leadership enhancement. Ordinarily, we review the district
court’s denial of an evidentiary hearing at sentencing for abuse
of discretion. See United States v. Pologruto, 914 F.2d 67 (5th
Cir. 1990). Issues raised for the first time on appeal,
however, are reviewed for plain error only. Henderson v. United
States, 133 S. Ct. 1121, 1125, 1126 (2013); see Fed. R. Crim. P.
52(b). Although the parties disagree as to whether Reyna
preserved the issue, we need not resolve this dispute because we
conclude the district court did not abuse its discretion.
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“Where the reliability of evidence is an issue[,] the court
should conduct an evidentiary hearing to determine the same.”
United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010)
(internal alteration and quotation marks omitted). While “the
court must ensure that the parties have an adequate opportunity
to present relevant information [on a disputed issue],” there is
no affirmative requirement that the court allow live testimony.
U.S. Sentencing Guidelines Manual § 6A1.3, cmt. (2013). After
review of the record, we conclude Reyna was provided an adequate
opportunity to present information relevant to the disputed
leadership enhancement, and we therefore discern no error.
Next, Reyna argues that the district court clearly erred
when it applied the three-level leadership enhancement. We
review sentences for reasonableness “under a deferential abuse-
of-discretion standard.” Gall v. United States, 552 U.S. 38, 41
(2007). This review entails appellate consideration of both the
procedural and substantive reasonableness of the sentence. Id.
at 51. We first ensure that the district court committed no
“significant procedural error,” including improper calculation
of the Guidelines range, insufficient consideration of the 18
U.S.C. § 3553(a) (2012) factors, and inadequate explanation of
the sentence imposed. Id.
The district court’s imposition of a role adjustment is a
factual determination reviewed for clear error. United States
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v. Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009). A three-level
enhancement under USSG § 3B1.1(b) is warranted if “the defendant
was a manager or supervisor (but not an organizer or leader) and
the criminal activity involved five or more participants.” To
qualify for such an enhancement, the defendant must have managed
or supervised “one or more other participants.” USSG § 3B1.1,
cmt. n.2. The enhancement is appropriate where the evidence
demonstrates that the defendant “controlled the activities of
other participants” or “exercised management responsibility.”
United States v. Slade, 631 F.3d 185, 190 (4th Cir. 2011).
We conclude that the district court did not clearly err
when it applied this enhancement. Reyna chose the location for
the carjacking; instructed a coconspirator how to get to the
club and where to park; and directed two coconspirators to
approach the victim with him.
Next, Reyna contends the district court should have applied
a two-level reduction for acceptance of responsibility, arguing
that the court erroneously considered that he denied personally
possessing the firearm underlying the brandishing charge. The
determination of whether a defendant merits an acceptance of
responsibility adjustment is a factual issue and thus reviewed
for clear error. United States v. Burns, ___ F.3d ___, 2015 WL
615678, at *4 (4th Cir. Feb. 13, 2015). “[T]he sentencing judge
is in a unique position to evaluate a defendant’s acceptance of
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responsibility, and thus . . . the determination of the
sentencing judge is entitled to great deference on review.”
Elliott v. United States, 332 F.3d 753, 761 (4th Cir. 2003)
(internal alteration and quotation marks omitted). This court
may reverse the district court’s finding only when “left with
the definite and firm conviction that a mistake has been
committed.” United States v. Dugger, 485 F.3d 236, 239 (4th
Cir. 2007) (internal quotation marks omitted).
We perceive no clear error in the district court’s
decision. As the district court concluded, Reyna frivolously
denied relevant conduct by denying possessing or brandishing a
firearm during the carjacking. The district court is permitted
to consider a defendant’s denial of facts underlying a § 924(c)
charge in deciding whether to grant the reduction. See United
States v. Hargrove, 478 F.3d 195, 201 (4th Cir. 2007).
Finally, Reyna contends that his sentence is substantively
unreasonable. If a sentence is procedurally reasonable, we then
consider whether it is substantively reasonable, “taking into
account the totality of the circumstances.” Gall, 552 U.S. at
51. “Any sentence that is within or below a properly calculated
Guidelines range is presumptively [substantively] reasonable.
Such a presumption can only be rebutted by showing that the
sentence is unreasonable when measured against the 18 U.S.C.
§ 3553(a) factors.” United States v. Louthian, 756 F.3d 295,
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306 (4th Cir.) (citation omitted), cert. denied, 135 S. Ct. 421
(2014).
We conclude that Reyna has failed to rebut the presumed
reasonableness of his within-Guidelines sentence. The district
court weighed Reyna’s lack of a criminal history against the
conduct underlying his convictions and concluded that a sentence
within the Guidelines range was necessary to reflect the serious
nature of the offense and to protect the public and provide
general deterrence.
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the material before this
court and argument will not aid the decisional process.
AFFIRMED
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