United States of America v. Elias Gradilla Hernandez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4203
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ELIAS GRADILLA HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:13-cr-00006-RLV-DSC-1)
Submitted: September 25, 2014 Decided: December 12, 2014
Before KEENAN, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Susan S. Kister, Chesterfield, Missouri, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Elias Gradilla Hernandez pleaded guilty, pursuant to a
written plea agreement, to conspiracy to distribute and possess
with intent to distribute at least five kilograms of cocaine, in
violation of 21 U.S.C. §§ 841(b)(1)(A), 846 (2012). The
district court imposed a within-Guidelines sentence of eighty-
seven months. 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
district court properly calculated Hernandez’s base offense
level based on the relevant drug quantity and whether the
Government properly declined to file a motion for a downward
departure based on substantial assistance. Although advised of
his right to do so, Hernandez has not filed a pro se
supplemental brief. The Government declined to file a response.∗
We affirm.
Counsel first questions whether the district court
properly calculated the relevant drug quantity in determining
Hernandez’s base offense level at sentencing. “[T]he government
must prove the drug quantity attributable to a particular
∗ The Government has not sought enforcement of the waiver of
appellate rights. See United States v. Poindexter, 492 F.3d
263, 271 (4th Cir. 2007) (recognizing that the government may
file a responsive brief raising the appellate waiver issue or do
nothing and allow this Court to perform the Anders review).

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defendant by a preponderance of the evidence.” United States v.
Bell, 667 F.3d 431, 441 (4th Cir. 2011). Because Hernandez did
not object to the applicable drug quantity in the district
court, we review this claim for plain error. United States v.
Martinez, 277 F.3d 517, 524-26 (4th Cir. 2002) (stating standard
of review). To prevail under this standard, Hernandez must
establish that: “(1) there is an error, (2) the error is plain,
and (3) the error affects substantial rights.” Henderson v.
United States, 133 S. Ct. 1121, 1126 (2013) (internal quotation
marks and alterations omitted).
Under U.S. Sentencing Guidelines Manual (“USSG”)
§ 1B1.3(a)(1), in determining the proper base offense level to
apply to a defendant involved in a drug conspiracy, the
defendant is responsible not only for his own acts, but for “all
reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity,”
whether or not the criminal activity is charged as a conspiracy.
See Bell, 667 F.3d at 441. If the district court relies on the
drug quantity included in the presentence report (“PSR”), the
defendant bears the burden of establishing that the information
is incorrect. United States v. Carter, 300 F.3d 415, 425 (4th
Cir. 2002).
Our review of the record leads us to conclude that the
district court did not err in determining the drug quantity

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attributable to Hernandez, as the PSR indicates that Hernandez
admitted his involvement in trafficking approximately fifty to
sixty kilograms of cocaine. Moreover, Hernandez has not
established that the information contained in the PSR is
incorrect or unreliable. Accordingly, we discern no plain
error.
Counsel next questions the Government’s failure to
move for a downward departure pursuant to USSG § 5K1.1, despite
the assistance provided by Hernandez. The decision whether to
file a § 5K1.1 motion lies solely within the Government’s
discretion. United States v. Butler, 272 F.3d 683, 686 (4th
Cir. 2001). Thus, unless the Government has obligated itself in
the plea agreement to make such a motion, its refusal to do so
is not reviewable absent evidence of an unconstitutional motive.
Wade v. United States, 504 U.S. 181, 185-87 (1992); Butler, 272
F.3d at 686. Because nothing in the plea agreement obligated
the Government to make a § 5K1.1 motion and the record reveals
no basis for concluding that the Government’s decision was based
on an unconstitutional motive, we find no error.
In accordance with the requirements of Anders, we have
examined the entire record and have found no meritorious issues.
We therefore affirm the district court’s judgment. This Court
requires that counsel inform Hernandez, in writing, of the right
to petition the Supreme Court of the United States for further

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review. If Hernandez 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 Hernandez. 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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