UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4137
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOEL ADOLFO BORJAS-HERNANDEZ, a/k/a Jose Hernandez Salazar,
a/k/a Carlos,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:09-cr-00163-1)
Submitted: October 5, 2011 Decided: October 25, 2011
Before NIEMEYER, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph R. Conte, LAW OFFICES OF J. R. CONTE, P.L.L.C.,
Washington, D.C., for Appellant. R. Booth Goodwin, II, United
States Attorney, Joshua C. Hanks, Assistant United States
Attorney, Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joel Adolfo Borjas-Hernandez pleaded guilty to an
information charging him with conspiracy to distribute heroin,
in violation of 21 U.S.C. § 846 (2006). The district court
sentenced Borjas-Hernandez to 292 months of imprisonment and he
now appeals. Finding no error, we affirm.
Borjas-Hernandez argues on appeal that the sentence
imposed by the district court is both procedurally and
substantively unreasonable. We review a sentence for
reasonableness, applying an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007); see also United
States v. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied,
130 S. Ct. 290 (2009). In so doing, we first examine the
sentence for “significant procedural error,” including “failing
to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
[18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Gall, 552 U.S. at 51. Finally,
we then “consider the substantive reasonableness of the sentence
imposed.” Id. We presume on appeal that a sentence within a
properly calculated advisory Guidelines range is reasonable.
United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see
2
Rita v. United States, 551 U.S. 338, 346-56 (2007) (upholding
presumption of reasonableness for within—Guidelines sentence).
Borjas-Hernandez first argues that the district court
erred in calculating the advisory Guidelines range. In
reviewing the district court’s calculations under the
Guidelines, “we review the district court’s legal conclusions de
novo and its factual findings for clear error.” United
States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010) (internal
quotation marks, citation, and alteration omitted). We will
“find clear error only if, on the entire evidence, we are left
with the definite and firm conviction that a mistake has been
committed.” Id. at 631 (internal quotation marks and citation
omitted).
Under the Sentencing Guidelines, the base offense
level applicable to the offense of conviction is thirty-eight,
if “death or serious bodily injury resulted from the use of the
substance.” See U.S. Sentencing Guidelines Manual (“USSG”)
§ 2D1.1(a)(2) (2010). In addition, a defendant is subject to a
four-level enhancement in the offense level if the defendant was
an organizer or leader of a criminal organization that involved
five or more participants, or was otherwise extensive. See USSG
§ 3B1.1(a). In determining whether this enhancement applies, a
district court must consider
3
[1] the exercise of decision making authority, [2] the
nature of participation in the commission of the
offense, [3] the recruitment of accomplices, [4] the
claimed right to a larger share of the fruits of the
crime, [5] the degree of participation in planning or
organizing the offense, [6] the nature and scope of
the illegal activity, and [7] the degree of control
and authority exercised over others.
United States v. Cameron, 573 F.3d 179, 184 (4th Cir. 2009)
(quoting USSG § 3B1.1 cmt. n.4). The district court must find
the enhancement applies by a preponderance of the evidence. See
United States v. Grubbs, 585 F.3d 793, 803 (4th Cir. 2009),
cert. denied, 130 S. Ct. 1923 (2010). We have thoroughly
reviewed the record and conclude that the district court did not
err in calculating the advisory Guidelines range.
Borjas-Hernandez next argues that the sentence is
substantively unreasonable because his codefendants received
lesser sentences than he did and because he did not have any
criminal history prior to this conviction. However, we conclude
that Borjas-Hernandez has failed to overcome the presumption we
apply to his within-Guidelines sentence. As the district court
correctly concluded, Borjas-Hernandez was in a different
position than his codefendants and, although he did not have a
criminal history, he had previously been deported at least
twice, thus demonstrating significant disrespect for the law.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
4
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
5