United States of America v. Walter Garcia-Arzate, a/k/a Aramando Millan Madrigal

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4029
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WALTER GARCIA-ARZATE, a/k/a Aramando Millan
Madrigal,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-05-123)
Submitted: August 30, 2006 Decided: September 14, 2006
Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Randall
Stuart Galyon, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Walter Garcia-Arzate pled guilty to conspiracy to
distribute cocaine hydrochloride, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2000). He was sentenced to 156 months of
imprisonment. Garcia-Arzate’s attorney on appeal has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating that
in his opinion there are no meritorious issues for appeal, but
raising as potential issues whether the district court erred in
failing to grant Garcia-Arzate a mitigating role adjustment and
whether the sentence imposed was reasonable. Garcia-Arzate filed
a pro se supplemental brief challenging the drug amount attributed
to him. Finding no reversible error, we affirm.
Garcia-Arzate’s counsel first questions whether Garcia-
Arzate should have received a reduction for his mitigating role in
the offense pursuant to U.S. Sentencing Guidelines § 3B1.2 (2004).
A defendant has the burden of showing by a preponderance of the
evidence that he had a mitigating role in the offense. United
States v. Akinkoye, 185 F.3d 192, 202 (4th Cir. 1999). A defendant
may receive a four-level reduction for being a minimal participant
if he is “plainly among the least culpable of those involved in the
conduct of a group.” USSG § 3B1.2, cmt. (n.4). This level of
culpability is shown by “the defendant’s lack of knowledge or
understanding of the scope and structure of the enterprise and of
the activities of others . . . .” Id. A two-level reduction may

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be made when a defendant is a minor participant, that is, one “who
is less culpable than most other participants, but whose role could
not be described as minimal.” USSG § 3B1.2, cmt. (n.5). In
deciding whether the defendant played a minor or minimal role, the
“critical inquiry is 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
quotations and citations omitted). Role adjustments are determined
on the basis of the defendant’s relevant conduct. United States v.
Fells, 920 F.2d 1179, 1183-84 (4th Cir. 1990). The district
court’s determination concerning the defendant’s role in the
offense is a factual issue reviewed for clear error. United
States v. Love, 134 F.3d 595, 606 (4th Cir. 1998). We have
reviewed the record and find the district court did not clearly err
in denying Garcia-Arzate a mitigating role adjustment.
Garcia-Arzate’s counsel next questions whether the
sentence under the advisory guidelines was unreasonable. After the
Supreme Court’s decision in United States v. Booker, 543 U.S. 220
(2005), a sentencing court is no longer bound by the range
prescribed by the sentencing guidelines. See United States v.
Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005) (noting after Booker,
sentencing courts should determine the sentencing range under the
guidelines, consider the other factors under § 3553(a), and impose

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a reasonable sentence within the statutory maximum). However, in
determining a sentence post-Booker, sentencing courts are still
required to calculate and consider the guideline range prescribed
thereby as well as the factors set forth in 18 U.S.C. § 3553(a)
(2000). Id. We will affirm a post-Booker sentence if it is both
reasonable and within the statutorily prescribed range. Id. at
546-47. We have further stated that “while we believe that the
appropriate circumstances for imposing a sentence outside the
guideline range will depend on the facts of individual cases, we
have no reason to doubt that most sentences will continue to fall
within the applicable guideline range.” United States v. White,
405 F.3d 208, 219 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005).
Indeed, “a sentence imposed ‘within the properly calculated
Guidelines range . . . is presumptively reasonable.’” United
States v. Green, 436 F.3d 449, 457 (4th Cir. 2006) (citing United
States v. Newsom, 428 F.3d 685, 687 (7th Cir. 2005), cert. denied,
126 S. Ct. 1455 (2006)).
We find that the district court properly calculated the
guideline range and appropriately treated the guidelines as
advisory. The court sentenced Garcia-Arzate only after considering
and examining the factors set forth in § 3553(a). Based on these
factors, and because the court sentenced Garcia-Arzate within the
applicable guideline range and the statutory maximum, we find that

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Garcia-Arzate’s sentence of 156 months of imprisonment is
reasonable.
We find the issue raised in Garcia-Arzate’s pro se
supplemental brief challenging the drug quantity attributed to him
to be without merit because he agreed to the drug quantity as part
of his plea agreement.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Garcia-Arzate’s conviction and
sentence. This court requires that counsel inform his client, in
writing, of his right to petition the Supreme Court of the United
States for further review. If the client 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 the client. 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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