                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 08-4936


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DAVID BELTRAN ZUNIGA,

                Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:07-cr-00200-NCT-6)


Submitted:   April 22, 2010                 Decided:   June 29, 2010


Before MOTZ, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Sandra Jane Hairston, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              David     Beltran      Zuniga    pled        guilty,    pursuant     to    a

written plea agreement, to one count of conspiracy to distribute

five kilograms or more of cocaine, in violation of 21 U.S.C.

§§ 841(b)(1)(A),        846    (2006).        The    district        court   calculated

Zuniga’s Guidelines range at 121 to 151 months’ imprisonment,

see U.S. Sentencing Guidelines Manual (“USSG”) (2007 & Supp.

2008), and sentenced Zuniga to 136 months’ imprisonment.                          Zuniga

now appeals.          Counsel has filed a brief pursuant to Anders v.

California,     386     U.S.   738    (1967),    stating       that    the    appeal    is

frivolous, but questioning whether the district court erred in

enhancing Zuniga’s base offense level three levels under USSG

§ 3B1.1(b) for his role in the conspiracy.                         Zuniga has filed a

pro    se     supplemental        brief       raising        the     same    challenge.

We affirm.

              In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

review.      Because Zuniga did not move in the district court to

withdraw his guilty plea, the adequacy of the Fed. R. Crim. P.

11 hearing is reviewed for plain error.                       See United States v.

Martinez, 277 F.3d 517, 525 (4th Cir. 2002).                        Our review of the

transcript of the plea hearing leads us to conclude that the

district court substantially complied with the mandates of Rule

11    in    accepting    Zuniga’s      guilty       plea    and     that    the   court’s

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omissions       did        not        affect         Zuniga’s          substantial             rights.

Critically,        the     transcript         reveals       that           the    district        court

ensured the plea was supported by an independent factual basis

and     that   Zuniga          entered      the   plea      voluntarily             and        with    an

understanding         of       the    consequences.                  See    United        States      v.

DeFusco,       949       F.2d        114,     116,      119-20             (4th         Cir.    1991).

Accordingly, we discern no plain error.

               Turning to Zuniga’s sentence, we review it under an

abuse-of-discretion standard.                     Gall v. United States, 552 U.S.

38, 41 (2007).           In conducting this review, we “must first ensure

that    the    district         court       committed       no       significant          procedural

error, such as failing to calculate (or improperly calculating)

the    Guidelines        range,       treating        the    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.”                                       Id. at 51.

“When    rendering         a   sentence,        the    district            court    must       make    an

individualized assessment based on the facts presented,” United

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal

quotation      marks       and       emphasis     omitted),           and        must    “adequately

explain the chosen sentence to allow for meaningful appellate

review and to promote the perception of fair sentencing,” Gall,

552     U.S.    at    50.            “When     imposing          a    sentence           within       the

Guidelines, however, the [district court’s] explanation need not

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be elaborate or lengthy.”        United States v. Hernandez, 603 F.3d

267, 271 (4th Cir. 2010).

            If the sentence is free from procedural error, we then

consider    the    substantive      reasonableness     of    the     sentence,

“tak[ing]   into    account   the    totality   of   the     circumstances.”

Gall, 552 U.S. at 51.     If the sentence is within the appropriate

Guidelines range, this court applies a presumption on appeal

that the sentence is reasonable.            United States v. Abu Ali,

528 F.3d 210, 261 (4th Cir. 2008), cert. denied, 129 S. Ct. 1312

(2009).

            Counsel and Zuniga question whether the district court

erred in enhancing Zuniga’s offense level three levels under

USSG § 3B1.1(b) for his role in the offense.                 In assessing a

challenge to the district court’s application of the Sentencing

Guidelines, we review a district court’s factual findings for

clear error and its legal conclusions de novo.              United States v.

Sosa-Carabantes, 561 F.3d 256, 259 (4th Cir. 2009).                A defendant

qualifies for a three-level enhancement in his offense level if

he “was a manager or supervisor (but not an organizer or leader)

and the criminal activity involved five or more participants or

was otherwise extensive.”           USSG § 3B1.1(b).        “Leadership over

only one other participant is sufficient as long as there is

some control exercised.”         United States v. Rashwan, 328 F.3d

160, 166 (4th Cir. 2003).           After reviewing the factual basis

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supporting       Zuniga’s     guilty    plea     and    the   presentence        report

adopted     by     the     district      court,        we   conclude      that    they

sufficiently establish that Zuniga was a manager of criminal

activity that involved over five participants.                         The district

court properly applied the role enhancement.

            Further, we conclude that the district court did not

otherwise     commit        reversible     procedural         error    in    imposing

Zuniga’s sentence.          The court correctly calculated the advisory

Guidelines range and heard argument from counsel and allocution

from Zuniga.        The court considered relevant § 3553(a) factors,

addressing on the record the nature and circumstances of the

offense.     Further, neither counsel nor Zuniga offers any grounds

to rebut the presumption on appeal that the within-Guidelines

sentence      of     136      months’     imprisonment          is     substantively

reasonable.

            We     therefore    affirm     the    district      court’s     judgment.

This court requires that counsel inform Zuniga, in writing, of

the right to petition the Supreme Court of the United States for

further review.          If Zuniga 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 Zuniga.



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            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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