UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4224
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAIRO NUNEZ-SANCHEZ, a/k/a Saul Sedano, a/k/a Omar Mendez
Navaro,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:06-cr-00353-RJC-1)
Submitted: October 28, 2011 Decided: November 10, 2011
Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Travis R. Fitzwater, LAW OFFICE OF TRAVIS R. FITZWATER,
Morgantown, West Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:
Jairo Nunez-Sanchez pled guilty, pursuant to a written
plea agreement, to conspiracy to possess with intent to
distribute heroin (Count One), possession of a firearm in
furtherance of a drug trafficking crime (Count Five), and money
laundering (Count Nine), in violation of 18 U.S.C. §§ 924(c),
1956(h) (2006), 21 U.S.C. § 846 (2006). He was sentenced to 228
months of imprisonment.
Nunez-Sanchez’s attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), in
which he asserts that there are no meritorious issues for
appeal, but questions the four-level enhancement applied at
sentencing, based on Nunez-Sanchez’s leadership role in the
offense. Nunez-Sanchez filed two supplemental pro se briefs
raising three additional claims: (1) his plea was unknowing and
involuntary; (2) Count Five of the indictment charged multiple
offenses under § 924(c) and therefore was duplicitous; and (3)
his money laundering conviction should be vacated in light of
the Supreme Court’s decision in United States v. Santos, 553
U.S. 507 (2008). We affirm.
Counsel challenges the district court’s application of
the four-level enhancement based on its finding that Nunez-
Sanchez exercised a leadership role in the underlying
conspiracy. Specifically, counsel asserts that the facts did
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not support the enhancement and that application of the
enhancement violates the rule announced in United States v.
Booker, 543 U.S. 220 (2005).
We review the district court’s decision to apply a
sentencing adjustment based on the defendant’s role in the
offense for clear error. United States v. Sayles, 296 F.3d 219,
224 (4th Cir. 2002). Under U.S. Sentencing Guidelines Manual
(“USSG”) § 3B1.1(a) (2006), an offense level is enhanced four
levels if “the defendant was an organizer or leader of a
criminal activity that involved five or more participants or was
otherwise extensive.” We find, based on our review of the
record, no clear error in the district court’s conclusion that
the enhancement was appropriate. Counsel also asserts that the
district court’s imposition of the enhancement, based on facts
not found by the jury, violated Nunez-Sanchez’s rights under
Booker. This claim, too, is without merit. See Rita v. United
States, 551 U.S. 338 (2007); United States v. Benkahla, 530 F.3d
300, 312 (4th Cir. 2008) (noting sentencing judges may make
findings of fact under a preponderance of the evidence standard
“so long as [the] Guidelines sentence is treated as advisory and
falls within the statutory maximum authorized by the jury’s
verdict”).
In his supplemental pro se briefs, Nunez-Sanchez first
asserts that his plea was unknowing and involuntary. We find
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this claim belied by the amended transcript of the Fed. R. Crim.
P. 11 hearing.
Because Nunez-Sanchez did not move in the district
court to withdraw his guilty plea, the Rule 11 proceeding is
reviewed for plain error. United States v. Martinez, 277 F.3d
517, 524-26 (4th Cir. 2002). The record establishes that the
district court fully complied with Rule 11 in accepting Nunez-
Sanchez’s guilty plea. The court ensured, through an
interpreter, that Nunez-Sanchez understood the charges against
him and the potential sentence he faced, that he entered his
plea knowingly and voluntarily, and that the plea was supported
by an independent factual basis. See United States v. DeFusco,
949 F.2d 114, 116, 119–20 (4th Cir. 1991). Accordingly, we find
that the district court did not plainly err in accepting Nunez-
Sanchez’s plea as knowingly and voluntarily entered.
Next, Nunez-Sanchez argues that Count Five of the
indictment was duplicitous because it charges two separate
offenses under 18 U.S.C. § 924(c)(1). However, a valid guilty
plea waives all antecedent nonjurisdictional defects. See
Tollett v. Henderson, 411 U.S. 258, 267 (1973). Defects in the
indictment are not jurisdictional. United States v. Cotton, 535
U.S. 625, 631 (2002). Accordingly, Nunez-Sanchez’s valid guilty
plea waives his claim that the indictment was defective.
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Next, Nunez-Sanchez challenges the validity of his
money laundering conviction in light of Santos (interpreting
“proceeds” to mean “profits” in the context of an underlying
illegal gambling conviction). We decline to so extend the
holding in Santos.
Pursuant to Anders, we have carefully reviewed the
record for reversible error and have found none. We therefore
affirm Nunez-Sanchez’s conviction and sentence. This court
requires that counsel inform Nunez-Sanchez, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Nunez-Sanchez requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Nunez-Sanchez. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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