UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4309
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LUIS TORRES NEGRETE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:08-cr-00151-WO-6)
Submitted: November 7, 2011 Decided: November 17, 2011
Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher A. Beechler, LAW OFFICES OF CHRISTOPHER A. BEECHLER,
Winston-Salem, North Carolina, for Appellant. Randall Stuart
Galyon, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luis Torres Negrete pleaded guilty to conspiracy to
distribute methamphetamine, in violation of 21 U.S.C. § 846
(2006). The district court sentenced Negrete to eighty-four
months of imprisonment, and he now appeals. Appellate counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), questioning whether the district court erred in
calculating the advisory Guidelines range. Negrete was informed
of his right to file a pro se supplemental brief, but did not do
so. Finding no error, we affirm.
On appeal, counsel questions whether the district
court erred in refusing to apply a reduction in offense level
under the Guidelines for Negrete’s minor role in the offense.
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.
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Moreover, 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 and citation 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,
alteration, and citation omitted).
Under the Guidelines, a defendant who is only a “minor
participant” in a criminal activity may have his offense level
reduced by two levels. U.S. Sentencing Guidelines Manual
(“USSG”) § 3B1.2(b) (2010). This reduction applies to a
defendant who is “substantially less culpable than the average
participant,” “but whose role could not be described as
minimal.” USSG § 3B1.2(b), cmt. n.3(A) & n.5. In deciding
whether the defendant played a minor role, the “critical inquiry
is thus not just whether the defendant has done fewer bad acts
than his co-defendants, but whether the defendant’s conduct is
material or essential to committing the offense.” United
States v. Pratt, 239 F.3d 640, 646 (4th Cir. 2001) (internal
quotation marks and citation omitted). The defendant bears the
burden of demonstrating that he played a minor role in the
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offense by a preponderance of the evidence. United States v.
Akinkoye, 185 F.3d 192, 202 (4th Cir. 1999).
We have thoroughly reviewed the record and conclude
that the district court did not err in calculating the advisory
Guidelines range. Moreover, the court considered the arguments
of the parties and the § 3553(a) factors, and thoroughly
explained its chosen sentence. See United States v. Carter, 564
F.3d 325, 330 (4th Cir. 2009) (district court must conduct
individualized assessment based on the particular facts of each
case, whether sentence is above, below, or within the guidelines
range). We conclude, therefore, that the sentence is
procedurally reasonable.
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. Accordingly, we affirm the judgment of the district
court. This court requires that counsel inform Negrete, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Negrete 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 Negrete. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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