United States of America v. Asuncion Sarminento Arguello, a/k/a Asuncion Arguello Sarminento

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4416
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ASUNCION SARMINENTO ARGUELLO, a/k/a Asuncion Arguello Sarminento,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Florence. R. Bryan Harwell, District Judge. (4:16-cr-00579-RBH-1)
Submitted: February 22, 2018 Decided: February 26, 2018
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Louis H. Lang, CALLISON TIGHE & ROBINSON, LLC, Columbia, South Carolina, for
Appellant. Christopher Dolan Taylor, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Asuncion Sarminento Arguello pled guilty pursuant to a plea agreement to
conspiracy to possess with intent to distribute and to distribute heroin and cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(l)(C), 846 (2012), and was sentenced to 108
months’ imprisonment. On appeal, counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal
but questioning whether the court properly overruled his objection to a two-level
enhancement for possessing a dangerous weapon, U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (2016); and whether the sentence was reasonable.* Arguello was informed
of his right to file a pro se supplemental brief. We affirm.
We review Arguello’s sentence for reasonableness, applying a deferential abuse-
of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). We first must
ensure that the district court committed no significant procedural error, such as improper
calculation of the Sentencing Guidelines range, inadequate consideration of the 18 U.S.C.
§ 3553(a) (2012) factors, or insufficient explanation of the sentence imposed. Id. In
* Counsel also questions the validity of the appellate waiver contained in Arguello’s plea
agreement. The Government has not sought to enforce the waiver in this case;
accordingly, we need not assess the validity and scope of the waiver in this proceeding
and may conduct a full review of the record as required by Anders. See United States v.
Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (noting that if Government does nothing in
response to Anders brief where appellant has waived his right to appeal, court will
perform required Anders review); see also United States v. Metzger, 3 F.3d 756, 757–58
(4th Cir. 1993) (holding that Government’s failure to assert appeal waiver as bar to
appeal constitutes waiver of reliance on appeal waiver).

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assessing challenges to the application of a specific Sentencing Guidelines provision, we
“review factual findings for clear error and legal conclusions de novo.” United States v.
Adepoju, 756 F.3d 250, 256 (4th Cir. 2014).
If we find no significant procedural error, we also must consider the substantive
reasonableness of the sentence. United States v. Diosdado-Star, 630 F.3d 359, 363 (4th
Cir. 2011). We presume that a sentence within a properly-calculated Guidelines range is
substantively reasonable. United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
Arguello bears the burden of rebutting this presumption “by showing that the sentence is
unreasonable when measured against the 18 U.S.C. § 3553(a) factors.” Id.
The district court did not clearly err by imposing the two-level sentencing
enhancement based on the presence of a pistol in a truck Arguello and a coconspirator
were riding in while transporting drugs for the charged conspiracy. The Government met
its burden for application of the enhancement by linking the weapon and drug trafficking.
United States v. Bolton, 858 F.3d 905, 912 (4th Cir. 2017); see USSG § 2D1.1(b)(1), cmt.
n.11(A) (“The enhancement should be applied if the weapon was present, unless it is
clearly improbable that the weapon was connected with the offense.”).
We conclude that Arguello’s sentence is reasonable. The district court correctly
calculated Arguello’s advisory Guidelines range as 108 to 135 months’ imprisonment,
based on a total offense level of 31 and criminal history category of I. The court listened
to the parties’ sentencing arguments and Arguello’s allocution, and it imposed the 108-
month sentence sought by Arguello, explaining that the within-Guidelines sentence was
warranted by the nature and circumstances of Arguello’s offense, his history and

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characteristics, and the need for the sentence to reflect the seriousness of the offense. See
18 U.S.C. § 3553(a)(1), (2)(A). Arguello offers nothing on appeal to rebut our
presumption that his within-Guidelines sentence is substantively reasonable. Louthian,
756 F.3d at 306.
In accordance with Anders, we have reviewed the record in this case and have
found no meritorious issues for appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Arguello, in writing, of his right to petition the
Supreme Court of the United States for further review. If Arguello 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 Arguello. 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

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