United States of America v. Mario Piedro Liberato, a/k/a Carlos

1The case was originally calendared for oral argument before
this panel of judges. Judge Johnston, however, recused himself from
the case. The case was removed from the oral argument calendar.
The decision is filed by a quorum of the panel pursuant to 28
U.S.C. § 46(d).
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4524
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARIO PIEDRO LIBERATO, a/k/a Carlos,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (CR-04-37-SGW)
Submitted: September 11, 2006 Decided: November 9, 2006
Before WILLIAMS and GREGORY, Circuit Judges, and Thomas E.
JOHNSTON, United States District Judge for the Southern District of
West Virginia, sitting by designation. 1
Affirmed by unpublished per curiam opinion.
Roland M. L. Santos, Harrisonburg, Virginia, for Appellant. John
L. Brownlee, United States Attorney, Joseph W. H. Mott, Assistant

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2
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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2Liberato does not challenge his conviction on the illegal
reentry charge.
3
PER CURIAM:
Mario Piedro Liberato pleaded guilty to one count of illegal
reentry into the United States after deportation for an aggravated
felony, in violation of 8 U.S.C.A. §§ 1326(a), (b)(2) (West 2005),
and to one count of conspiracy to distribute in excess of 5
kilograms of cocaine, 1,000 kilograms of marijuana, and 50 grams of
methamphetamine, in violation of 21 U.S.C.A. §§ 846 and 841(a)
(West 1999). 2 On appeal, Liberato contends that the district court
erred in accepting his guilty plea and in failing to treat drug
quantity as an element of the offense under § 841(a). Finding no
reversible error, we affirm.
I.
On November 17, 2004, a grand jury returned a five-count
indictment against Liberato for his involvement in a wide-ranging
drug conspiracy. One count of the indictment charged Liberato
under 21 U.S.C.A. §§ 846 and 841(a)(1) with conspiracy to
distribute in excess of 5 kilograms of cocaine, 1,000 kilograms of
marijuana, and 50 grams of methamphetamine. Liberato entered into
a written plea agreement with the Government, in which he pleaded
guilty to the drug conspiracy count and to another count charging
him with illegal reentry into the United States after deportation
for conviction of an aggravated felony. The parties made no

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3The Government does not raise the issue of Liberato’s waiver
of these rights. We therefore decline to raise the issue sua
sponte. See United States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir.
2000)(“[T]he Government expressly elected not to argue waiver ...
and we decline to determine whether [the defendant] waived this
issue in the absence of argument by the parties.”).
4
agreement as to the kinds or quantities of drugs attributable to
Liberato, either for guidelines or statutory penalty purposes, and
instead agreed that the district court would make all quantity
determinations at sentencing. Liberato waived his rights to appeal
sentencing guidelines issues and to collaterally attack the
district court’s judgment. 3 Liberato also acknowledged that the
agreement subjected him to the maximum penalties for the object
drug offenses -- life in prison and a mandatory minimum of twenty
years in prison -- based on his prior felony drug conviction. The
parties agreed that the plea was not an admission of responsibility
for any quantity of drugs.
During the guilty plea hearing, the district court conducted
an extensive Rule 11 colloquy with Liberato. The Government
recited the terms of the plea agreement, and Liberato’s counsel
acknowledged that the Government’s recitation reflected her
understanding of the agreement. Liberato stated that the agreement
had been read to him by his counsel and that “I understood
everything, I just disagree with some part of it.” (J.A. at 50.)
Liberato then admitted his involvement in the marijuana conspiracy,
but he stated that he would “not take responsibility for cocaine or

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5
methamphetamines or any other drugs that they’re bringing in to
me.” (J.A. at 51.)
Liberato’s counsel immediately spoke up and stated that
“[Liberato] understands that that was part of the conspiracy.”
(J.A. at 51.) After the Government explained that Liberato was
admitting to the conspiracy but denying responsibility for
distributing cocaine and methamphetamine as part of that
conspiracy, the court asked Liberato if this was correct. Liberato
responded that it was.
At this point the district court expressed some concern as to
how he could accept Liberato’s guilty plea to a conspiracy that
involved cocaine and methamphetamine when Liberato only admitted to
involvement in marijuana. The Government responded that the plea
agreement reserved to the district court the authority to determine
which drugs would be attributed to Liberato. The district court
then asked Liberato a number of questions to ensure that he
understood the consequences of his guilty plea, including asking
whether Liberato understood that he was agreeing to allow the
district court to determine the exact quantity of marijuana
attributable to him and to determine whether any cocaine or
methamphetamine would be attributed to him. The district court
took a recess to give Liberato and his counsel an opportunity to
make sure that Liberato completely understood the consequences of
his plea.

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4In making this quantity determination, the district court was
required to apply the principles of Pinkerton v. United States, 328
U.S. 640, 646-47 (1946): Liberato could only be responsible for
drug quantities attributed to the overall conspiracy that were both
within the scope of Liberato’s individual agreement to the
conspiracy and reasonably foreseeable to him. Id.; see also
United States v. Collins, 415 F.3d 304, 313-14 (4th Cir.
2005)(stating that, while the Pinkerton principles “have no
applicability to a conviction under [21 U.S.C.A.] § 846,” they
should be used under § 841(b) in determining “the amount of
narcotics attributable to any one individual in a conspiracy”).
6
After the recess, Liberato’s counsel stated that it was her
“firm belief” that Liberato understood “exactly” the consequences
of his plea and that it would be up to the district court to
determine the type and amount of drugs attributable to him in the
conspiracy.4 (J.A. at 57.) The court again asked Liberato a
number of questions to ensure that he completely understood the
consequences of his guilty plea, repeating the fact that Liberato
was leaving it to the court to decide whether the cocaine and
methamphetamine were attributable to him. To each question,
Liberato replied that he understood. Liberato stated that he was
pleading guilty because he was in fact guilty of the conspiracy.
The district court then heard a lengthy recitation of the
factual basis for the pleas. Liberato stated that he agreed with
the recitation, save the part relating to cocaine and
methamphetamine. The district court found that the plea was
knowing and voluntary and that it was “supported by an independent
basis in fact insofar as it relates to a conspiracy to distribute
marijuana . . . .” (J.A. at 90.) The court held under advisement

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7
whether there was an independent basis for attributing the cocaine
or methamphetamine to Liberato.
The presentence report (PSR) attributed 1,500 pounds of
marijuana, 13 kilograms of cocaine powder, and 8.5 ounces of
methamphetamine to Liberato. At sentencing, a co-conspirator, two
case agents, and Liberato testified on quantity issues and on an
obstruction enhancement for threats that Liberato made toward the
co-conspirator. The district court found “beyond a reasonable
doubt as to the question of weight that the weight involved more
than a thousand kilograms of marijuana that was the object of the
conspiracy into which the defendant had entered.” (J.A. at 219.)
The district court also sustained Liberato’s objection to the PSR,
declining to attribute any cocaine or methamphetamine to him. The
court sentenced Liberato within the Guidelines to 360 months’
imprisonment. Liberato timely noted an appeal. We have
jurisdiction pursuant to 28 U.S.C.A. § 1291 (West 2006).
II.
Liberato contends that the district court erred in accepting
his guilty plea in the face of his refusal to admit involvement in
all the drugs charged in the indictment. Because Liberato did not
object or withdraw his guilty plea in the district court on the
basis of this alleged error, we review for plain error. United
States v. Vonn, 535 U.S. 55, 59 (2002)(holding that in the Rule 11

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8
context “a silent defendant has the burden to satisfy the plain-
error rule”); United States v. Martinez, 277 F.3d 517, 525-527 (4th
Cir. 2002) (same). Under plain error review, Liberato must show
that (1) the district court committed an error, (2) the error was
plain, and (3) the error affected his substantial rights, i.e.,
that the error affected the outcome of the district court’s
proceedings. United States v. Olano, 507 U.S. 725, 732-34 (1993);
United States v. Hughes, 401 F.3d. 540, 547-48 (4th Cir. 2005).
Even if Liberato makes this showing, we should only notice the
error if the error “seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Hughes, 401 F.3d at
555 (internal quotation marks and citation omitted).
A drug conspiracy exists “when there is an agreement to
engage in one overall venture to deal in drugs.” United States v.
Bowens, 224 F.3d 302, 307 (4th Cir. 2000). It is axiomatic that
once a conspiracy is proven, “a defendant need not be involved in
every phase of that conspiracy to be deemed a participant.” United
States v. Leavis, 853 F.2d 215, 218 (4th Cir. 1988). Indeed, we
have not required a defendant facing a multi-drug conspiracy count
to admit involvement in all charged drugs for the district court to
accept the defendant’s guilty plea. See United States v. Scheetz,
293 F.3d 175, 187-88 (4th Cir. 2002)(affirming the district court’s
acceptance of a guilty plea to a multi-drug conspiracy count even
though the defendant denied responsibility for one of the object
drugs). Liberato’s argument is also undercut by the fact that the

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5“Specific threshold drug quantities” are those quantities of
drugs set forth in 21 U.S.C.A. §§ 841(b)(1)(A), (b)(1)(B), a
finding of which subjects a defendant to a sentence of ten years to
life imprisonment (§ 841(b)(1)(A)) or five to forty years
imprisonment (§ 841(b)(1)(B)).
9
district court expressly did not attribute any amount of cocaine or
methampetamine to him; functionally, then, the district treated his
plea as if the indictment only charged a conspiracy to distribute
marijuana. Accordingly, the district court did not err in
accepting Liberato’s guilty plea solely because he did not assume
responsibility for all the drugs charged in the indictment.
As a corollary to his argument, and in an attempt to implicate
our decision in United States v. Promise, 255 F.3d 150 (4th Cir.
2001)(en banc), Liberato also contends that the district court
erred in accepting his guilty plea to the multi-drug conspiracy
indictment because, in so doing, the district court failed to treat
the threshold quantities charged in the indictment as elements of
the offense. In Promise, we held, in the wake of the Supreme
Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000),
that the specific threshold drug quantities listed in 21 U.S.C.A.
§ 841(b) are not mere sentencing factors but are elements of
separate aggravated drug offenses that must be charged in the
indictment and proved to the jury beyond a reasonable doubt or
admitted by the defendant. 5 Id. at 156-57. Promise made clear
that § 841 is a “multi-offense statute, with the baseline offense
being drug distribution without a quantity finding, § 841(b)(1)(C),

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6Because the district court sustained Liberato’s objection to
the PSR’s attribution of cocaine and methamphetamine to Liberato,
the court did not rely on the PSR’s base offense level calculation.
Based on Liberato’s involvement in excess of 1,000 kilograms of
marijuana, the district court, using the 2004 Sentencing
Guidelines, calculated Liberato’s base offense level to be 32.
Four points were added pursuant to U.S.S.G. § 3B1.1(a) because
Liberato acted as an organizer or leader of the conspiracy, and 2
points were added pursuant to U.S.S.G. § 3C1.1 because Liberato
attempted to obstruct justice. This rendered a total offense level
of 38. Based on an offense level of 38 and a criminal history
category of III, the district court determined that the advisory
Guidelines range for Liberato’s offense was 292 to 365 months. See
United States Sentencing Guidelines Manual Chapter 5, Part A
(2004). Accounting for Liberato’s previous felony drug conviction,
under 21 U.S.C.A. § 841(b)(1)(A) the mandatory minimum and maximum
terms for Liberato’s offense were twenty years to life
imprisonment. Liberato’s 360 months’ sentence thus falls within
both the statutory and Guidelines ranges for his offense.
10
and with multiple aggravated offenses containing the additional
element of a particular threshold quantity of drugs.” Martinez,
277 F.3d at 528 (emphasis added).
Liberato’s reliance on Promise is unavailing. Liberato
pleaded guilty to involvement in excess of 1,000 kilograms of
marijuana, the threshold quantity of marijuana that was charged in
the indictment; under § 841(b)(1)(A), this was a guilty plea to an
aggravated marijuana conspiracy distinct from the aggravated
offenses involving cocaine and methamphetamine that are specified
elsewhere in the statute. Moreover, the district court found
beyond a reasonable doubt that Liberato was involved in excess of
the threshold marijuana quantity. Accordingly, Liberato was
sentenced to 360 months’ imprisonment, which was within the
statutory range for his offense. 6 See 21 U.S.C.A. § 841(b)(1)(A).

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Therefore, our holding in Promise is not implicated because
Liberato was not sentenced above the statutory maximum for the
aggravated marijuana offense to which he pleaded guilty.
III.
In sum, we affirm Liberato’s convictions. 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 in the decisional process.
AFFIRMED

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