United States of America v.  WARREN KUZON, a/k/a James Brown, a/k/a Shortman, a/k/a Gladstone Lawrence

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 02-4286  WARREN KUZON, a/k/a James Brown,
a/k/a Shortman, a/k/a Gladstone
Lawrence,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CR-00-765)
Submitted: September 24, 2002
Decided: October 10, 2002
Before WILKINS, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Francis Cornely, FRANCIS CORNELY ATTORNEY AT LAW,
Charleston, South Carolina, for Appellant. J. Strom Thurmond, Jr.,
United States Attorney, Miller W. Shealy, Jr., Assistant United States
Attorney, Charleston, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Warren Kuzon pled guilty to conspiracy to possess with intent to
distribute five kilograms or more of cocaine and fifty grams or more
of cocaine base (crack), 21 U.S.C. § 846 (2000) (Count 1), and con-
spiracy to commit money laundering, 18 U.S.C.A. § 1956(h) (West
2000 & Supp. 2002) (Count 17). The district court sentenced him to
a term of 293 months imprisonment. Kuzon appeals his sentence, con-
testing the district court’s determination of the quantity drugs attribut-
able to him, U.S. Sentencing Guidelines Manual § 2D1.1 (2001), and
its decision to impose a four-level adjustment for his leadership role.
USSG § 3B1.1(a). We affirm.
First, we are satisfied that the district court did not clearly err in
finding that Kuzon was a leader in an offense that involved at least
five participants or was otherwise extensive. United States v. Perkins,
108 F.3d 512, 518 (4th Cir. 1997) (stating standard of review); USSG
§ 3B1.1(a). Kuzon asserts that there was no evidence that he exer-
cised direct control over any other participant, and that he had no
more than a buyer-seller relationship with certain co-defendants to
whom he fronted drugs. He argues that any information to the con-
trary was not reliable. However, the district court had before it evi-
dence that the conspiracy involved at a minimum Kuzon, Donald
Dixon, Aldo Saenz, Jarien Martino, and Kevin Martino. The district
court also found that a number of participants identified Kuzon as the
person directing their activities, in particular, Dixon and Saenz, who
each transported large amounts of cocaine from Arizona to South Car-
olina, and that Kuzon had also used Kevin Martino as a nominee to
register his car. This evidence was enough to support the adjustment
if the district court found that the information was reliable. See USSG
§ 6A1.3(a), p.s. (to resolve disputed factors, district court may con-
sider any information that has sufficient indicia of reliability to sup-
port its probable accuracy). The district court heard and rejected
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Kuzon’s arguments against the reliability of this particular disputed
information. Kuzon’s conclusory argument on appeal has not per-
suaded us that the district court clearly erred in making the four-level
adjustment.
Next, we find that the district court did not clearly err in determin-
ing the amount of drugs attributable to Kuzon. United States v. Ran-
dall, 171 F.3d 195, 210 (4th Cir. 1999) (stating standard of review).
Kuzon maintains that the district court erred in accepting information
derived from statements made by unreliable co-defendants and in fail-
ing to find specifically that the drugs for which he was held responsi-
ble were reasonably foreseeable to him and within the scope of his
agreement with his co-conspirators. See USSG § 1B1.3(a)(1)(B),
comment. (n.2). However, the district court did not include any drug
amounts derived from the statements of the Martino brothers, which
was the only information the court found to be of uncertain reliability.
In addition, the base offense level used by the district court would
apply even if all drugs were excluded except the 608.4 grams of crack
seized from Kuzon’s house. There is no doubt that Kuzon was prop-
erly held responsible for that quantity of crack because a defendant
is always responsible for drug amounts with which he is personally
involved, and the principle of reasonable foreseeability does not apply
to conduct the defendant personally undertakes. Id.
Last, Kuzon argues that the crack seized from his home must be
suppressed because it was omitted from the initial return in violation
of Rule 41(d) of the Federal Rules of Criminal Procedure. Violations
of Rule 41(d) that are not constitutional in nature require suppression
of evidence only when the defendant is prejudiced by the violation or
when the rule has been intentionally and deliberately disregarded.
United States v. Simons, 206 F.3d 392, 403 (4th Cir. 2000). In this
case, we need not reach this issue because Kuzon waived it by plead-
ing guilty.
On February 5, 2001, Kuzon’s first attorney filed a motion to sup-
press the items seized pursuant to the search warrant. On April 2,
2001, Kuzon pled guilty to conspiracy to traffic in cocaine, crack, and
marijuana and conspiracy to commit money laundering. Kuzon did
not ask for a ruling on his motion to suppress or reserve the issue for
appeal in his plea agreement. Nor does he contest the validity of his
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guilty plea on appeal. A valid guilty plea waives all non-jurisdictional
defects. Tollett v. Henderson, 411 U.S. 258, 267 (1973); United States
v. Willis, 992 F.2d 489, 490 (4th Cir. 1993). Consequently, by plead-
ing guilty, Kuzon waived his right to challenge the use of the crack
seized during execution of the search warrant for sentencing purposes.
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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