UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4194
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WILLIAM ORTIZ LAZARO,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:08-cr-00511-WDQ-3)
Submitted: September 28, 2011 Decided: October 13, 2011
Before SHEDD, AGEE, and KEENAN, Circuit Judges.
Affirmed in part, dismissed in part by unpublished per curiam
opinion.
Francis S. Brocato, BROCATO, PRICE & JANOFSKY, LLC, Towson,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Michael C. Hanlon, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Ortiz Lazaro seeks to appeal his 135-month
sentence imposed following his guilty plea, pursuant to a
written plea agreement, to one count of Hobbs Act robbery, in
violation of 18 U.S.C. § 1951(a) (2006) (“Count Fourteen”), and
one count of possession of a firearm in furtherance of a crime
of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii),
(C)(i) (2006) (“Count Fifteen”). On appeal, Lazaro contends
that the district court applied the incorrect standard in
determining whether a five- or seven-year statutory minimum
applied on Count Fifteen, erred in applying a six-level
enhancement on Count Fourteen, and erred in failing to compare
Lazaro’s sentence to those of his codefendants. In response,
the Government asserts that Lazaro’s appellate waiver bars
review of his second and third claims.
We conclude that Lazaro’s appellate waiver was knowing
and voluntary, as the district court fully questioned Lazaro
regarding the waiver, and the totality of the circumstances
indicates that Lazaro understood the waiver’s significance. See
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
Because his second and third claims fall within the scope of the
waiver, see United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005), we agree with the Government and dismiss these claims.
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As to Lazaro’s preserved claim, we affirm. Lazaro
argues that the district court erred in determining whether he
was subject to a five- or seven-year statutory minimum on Count
Fifteen by evaluating whether it was reasonably foreseeable that
his codefendants would brandish their firearms. In assessing a
challenge to a sentence enhancement, we review the district
court’s factual findings for clear error and its legal
conclusions de novo. United States v. Carter, 601 F.3d 252, 254
(4th Cir. 2010).
Section 924(c)(1)(A) requires the imposition of a
consecutive five-year sentence where a defendant possesses a
firearm in furtherance of a crime of violence; however, “if the
firearm is brandished, [the defendant shall] be sentenced to a
term of imprisonment of not less than 7 years.” 18 U.S.C.
§ 924(c)(1)(A)(ii). “A defendant may be convicted of a § 924(c)
charge on the basis of a coconspirator’s use of a gun if the use
was in furtherance of the conspiracy and was reasonably
foreseeable to the defendant.” United States v. Wilson, 135
F.3d 291, 305 (4th Cir. 1998). Moreover, a defendant may be
convicted of a § 924(c) offense on the basis of coconspirator
liability even without a separate conspiracy charge. United
States v. Zackery, 494 F.3d 644, 647-48 (8th Cir. 2007); cf.
United States v. Ashley, 606 F.3d 135, 143 (4th Cir. 2010)
(holding that vicarious coconspirator liability need not be
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charged in the indictment). Applying these standards, we hold
that the district court correctly determined the applicable
statutory minimum. Lazaro’s companion claim that the district
court improperly assessed whether the brandishing was reasonably
foreseeable in order to determine whether Lazaro aided and
abetted the brandishing is similarly without merit, as the
district court made no aiding or abetting determination.
Rather, the court merely applied the seven-year statutory
minimum to Lazaro on the ground that it was reasonably
foreseeable that Lazaro’s codefendants would brandish their
weapons.
For the foregoing reasons, we affirm Lazaro’s
convictions, which he does not challenge on appeal, and the
district court's ruling as to Lazaro’s claim of error on Count
Fifteen. We dismiss his claims as to Count Fourteen. 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 IN PART,
DISMISSED IN PART
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