5:10-cr-00005-RLV-DCK-2) UNITED STATES OF AMERICA v. Jovo Vargas Nunez

FILED: August 24, 2012
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4054
(5:10-cr-00005-RLV-DCK-2)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOVO VARGAS NUNEZ,
Defendant - Appellant.
O R D E R
The Court amends its opinion filed today, as follows:
On the cover page in the attorney data section, the words
"Appellant Pro Se" are corrected to read "Asheville, North
Carolina, for Appellant."
For the Court – By Direction
/s/ Patricia S. Connor
Clerk

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4054
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOVO VARGAS NUNEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:10-cr-00005-RLV-DCK-2)
Submitted: August 22, 2012 Decided: August 24, 2012
Before WILKINSON, GREGORY, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Tony E. Rollman, Asheville, North Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:
Jovo Vargas Nunez pled guilty pursuant to a written
plea agreement to Count 1, conspiracy to distribute and possess
with intent to distribute cocaine. After the district court
granted Nunez a two-level downward variance, it sentenced him to
132 months of imprisonment, the middle of his correctly
calculated advisory sentencing range. On appeal, counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting there are no meritorious grounds for appeal,
but raising the following issue: whether the district court
erred by increasing Nunez’s base offense level by two for
possession of a firearm during the course of the conspiracy
under U.S. Sentencing Guidelines Manual (“USSG”) § 2D1.1(b)(1)
(2011). Although informed of his right to do so, Nunez has not
filed a pro se supplemental brief. For the reasons that follow,
we affirm.
After United States v. Booker, 543 U.S. 220 (2005), we
review a sentence for reasonableness, using an abuse of
discretion standard of review. Gall v. United States, 552 U.S.
38, 51 (2007). The first step in this review requires the court
to ensure that the district court committed no significant
procedural error. United States v. Evans, 526 F.3d 155, 161
(4th Cir. 2008). Procedural errors include failing to calculate
(or improperly calculating) the Guidelines range, treating the

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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 — including an explanation for any deviation from the
Guidelines range. Gall, 552 U.S. at 51. Only if we find a
sentence procedurally reasonable may we consider its substantive
reasonableness. United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009). Here, we discern no basis to conclude that Nunez’s
within-Guidelines sentence was either procedurally or
substantively unreasonable. See United States v. Powell, 650
F.3d 388, 395 (4th Cir.) (noting this court presumes sentence
within applicable Guidelines range to be reasonable), cert.
denied, 132 S. Ct. 350 (2011).
Although counsel suggests that Nunez’s offense level
should not have been increased two levels pursuant to USSG
§ 2D1.1(b)(1), we conclude the enhancement was appropriate. As
indicated in the presentence report adopted by the district
court, although Nunez did not necessarily possess a weapon
himself, it was foreseeable to him that his co-conspirators
would do so during the commission of the crime. See USSG
§ 2D1.1(b)(1), comment. (n.3(A)) (noting that the “enhancement
should be applied if the weapon was present, unless it is
clearly improbable that the weapon was connected with the
offense”). Here, there was wiretap evidence that weapons were

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used to collect a drug debt and co-conspirators, both above and
below Nunez in the conspiracy, possessed weapons. Whether a
district court properly applied a USSG § 2D1.1(b)(1) enhancement
is reviewed for clear error, United States v. McAllister, 272
F.3d 228, 234 (4th Cir. 2001), and we find none.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Nunez’s conviction and sentence. This court
requires that counsel inform Nunez, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Nunez 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. 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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