                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-4563


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MOISES ARIAS ALEJO,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever III,
Chief District Judge. (5:14-cr-00004-D-1)


Submitted:   March 30, 2015                 Decided:   April 3, 2015


Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jeffrey W. Gillette, GILLETTE LAW FIRM, PLLC, Franklin, North
Carolina, for Appellant.      Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Shailika S. Kotiya, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     A federal grand jury indicted Moises Arias Alejo on one

count of conspiracy to distribute and possess with intent to

distribute 500 grams or more of cocaine, in violation of 21

U.S.C. § 846 (2012); two counts of distribution of cocaine, in

violation     of    21    U.S.C.     §     841(a)(1)       (2012);    one       count   of

distribution       of,    and     possession        with   intent     to    distribute,

cocaine, and aiding and abetting the same, in violation of 21

U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (2012); and one count of

possession of a firearm by an illegal alien, and aiding and

abetting the same, in violation of 18 U.S.C. §§ 922(g)(5), 924,

and 2 (2012).        Without a plea agreement, Alejo pled guilty to

all five counts.         The district court sentenced him to 78 months’

imprisonment,      the    middle     of    the      Sentencing    Guidelines       range.

Alejo appeals his sentence.

     We review Alejo’s sentence for procedural and substantive

reasonableness           “under      a        deferential        abuse-of-discretion

standard.”      Gall v. United States, 552 U.S. 38, 41 (2007).                          In

determining procedural reasonableness, we consider whether the

district court properly calculated Alejo’s advisory Guidelines

range,   gave      the     parties       an       opportunity    to   argue      for    an

appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012)

sentencing      factors,        selected       a     sentence    based     on     clearly



                                              2
erroneous     facts,     and     sufficiently          explained    the    selected

sentence.     Id. at 49-51.       If the sentence is free of significant

procedural error, we review it for substantive reasonableness,

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

at 51.

     In determining Alejo’s Guidelines range, the district court

adopted the calculations in the presentence investigation report

(“PSR”),    including      a    two-level       increase    in   Alejo’s    offense

level,      pursuant     to      U.S.      Sentencing       Guidelines       Manual

§ 2D1.1(b)(1) (2013), for possession of a firearm.                     Alejo filed

no objections to the PSR.            To the extent that Alejo challenges

the § 2D1.1(b)(1) enhancement on appeal, we conclude that he

waived appellate review through his concessions in the district

court that he was subject to the enhancement.

     Generally,    unpreserved       errors       in   sentencing   are    reviewed

for plain error.        See Fed. R. Crim. P. 52(b); United States v.

Olano, 507 U.S. 725, 731-32 (1993).                    However, a defendant may

waive appellate review of a sentencing error if he raises and

then knowingly withdraws an objection to the error before the

district court.        See United States v. Horsfall, 552 F.3d 1275,

1283 (11th Cir. 2008) (finding that defendant’s withdrawal of

objection    to   upward       departure       precluded   appellate      review    of

departure); United States v. Rodriguez, 311 F.3d 435, 437 (1st



                                           3
Cir.       2002)    (“A    party    who      identifies        an   issue,       and       then

explicitly withdraws it, has waived the issue.”)

       An appellant is precluded from challenging a waived issue

on   appeal.         Rodriguez,     311      F.3d   at   437.       Such    a    waiver      is

distinguishable “from a situation in which a party fails to make

a    timely    assertion     of    a    right—what       courts     typically         call    a

‘forfeiture,’” id. (quoting Olano, 507 U.S. at 733), which, as

noted above, may be reviewed on appeal for plain error.                                Olano,

507 U.S. at 733-34.            “By contrast, waiver is intentional, and

extinguishes an error so that there is no review, because the

defendant      has    knowingly        and    personally       given   up       the    waived

right.”       United States v. Laslie, 716 F.3d 612, 614 (D.C. Cir.

2013) (internal quotation marks and citation omitted).

       Here, Alejo did not raise, and then withdraw, an objection

to the § 2D1.1(b)(1) enhancement.                   However, he clearly was aware

of the enhancement and chose not to challenge it.                           Prior to the

issuance       of    the    PSR,    when      seeking      a    continuance           of    the

sentencing hearing in light of a pending Guidelines amendment,

Alejo       acknowledged     that       he    would      probably      qualify        for     a

sentencing enhancement for the firearm officers found in Alejo’s

residence. *        After receiving the PSR in which the § 2D1.1(b)(1)

       *
       Alejo sold cocaine from inside his home and stored cocaine
on his property.



                                              4
enhancement       was    applied,     Alejo      filed   a   sentencing      memorandum

seeking a downward variance.                  In his memorandum, he expressly

stated that he did not challenge the Guidelines calculations in

the PSR and acknowledged that there was “ample” legal authority

to support the § 2D1.1(b)(1) enhancement, but he requested that

the firearm not factor into the court’s decision regarding the

variance.        At sentencing, he once again stated that he had no

objections to the PSR.

      Rather       than     pursuing        a     challenge      to     the      firearm

enhancement, Alejo chose to focus his efforts on gaining the

benefit     of    a     proposed      Guidelines        amendment     and   seeking      a

downward      variance.          By   his   repeated      acknowledgement        of    the

§ 2D1.1(b)(1) enhancement and his concessions that it applied to

his   case,      Alejo    demonstrated      his    deliberate       decision     not    to

contest the enhancement.              Under these circumstances, we conclude

that he has waived appellate review of the issue.                       United States

v. Olejiya, 754 F.3d 986, 993-94 (D.C. Cir. 2014); cf. United

States v. Claridy, 601 F.3d 276, 284 n.2 (4th Cir. 2010) (“When

a   claim   of    constitutional        error     has    been   waived,     it   is    not

reviewable on appeal.”).

      The   remainder       of    Alejo’s       claims   concern      the   substantive

reasonableness of his sentence.                 Specifically, Alejo argues that

the district erred in considering his possession of a firearm as



                                            5
an aggravating factor and that his sentence is unreasonable when

measured against the § 3553(a) factors.                            He contends that the

court    should    have      granted       him       a    downward    variance          or,   at    a

minimum,      imposed    a     sentence        at    the     bottom    of    the     Guidelines

range, because of his lack of a criminal record, the limited

nature of his offense conduct, his personal history, the pending

amendment to the Guidelines, and the disparity between his 78-

month      sentence       and        the     60-month           sentence      his        supplier

subsequently received for trafficking in larger quantities of

cocaine.

      We      examine    the    substantive              reasonableness      of     a    sentence

under “the totality of the circumstances.”                             Gall, 552 U.S. at

51; United States v. Howard, 773 F.3d 519, 528 (4th Cir. 2014).

A sentence “within or below a properly calculated Guidelines

range is presumptively reasonable [on appeal].”                                   United States

v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S.

Ct.     421    (2014).          Alejo      bears          the   burden       to     rebut     this

presumption “by showing that the sentence is unreasonable when

measured       against    the    .     .   .     §       3553(a)   factors.”            Id.        In

evaluating the sentence for an abuse of discretion, “we give due

deference to the [d]istrict [c]ourt’s reasoned and reasonable

decision that the § 3553(a) factors, on the whole, justified the

sentence.”         Gall,       552    U.S.     at        59-60.       When    reviewing        for



                                                 6
substantive reasonableness, “we can reverse a sentence only if

it is unreasonable, even if the sentence would not have been the

choice of the appellate court.”                   United States v. Yooho Weon,

722   F.3d    583,    590    (4th    Cir.     2013)       (internal      quotation         marks

omitted).

      The     court       stated    that     it     had     considered         all    of    the

§ 3553(a) sentencing factors, focusing on § 3553(a)(1):                                      the

nature and circumstances of the offenses and Alejo’s history and

characteristics.            The     court    noted    that     all      five    of    Alejo’s

crimes were serious and he sold drugs on multiple occasions.

The court found it “ridiculous, absurd and aggravating” that

Alejo took his five-year-old son with him on one of his drug

transactions, and considered Alejo’s possession of a firearm to

be an aggravating factor.                 These considerations weighed against

a downward variance in the court’s view.                          The court recognized

that Alejo was raised in poverty and had, at least at times,

engaged      in    lawful    employment.          However,        the    court       also   was

unconvinced        that     Alejo    was     “forced       into”       drug    trafficking;

rather,      the    court    concluded       that     his    motivation         was    greed.

Having considered the parties’ arguments, the record, and the

§   3553    factors,      the     court     concluded      that    a    sentence       in   the

middle of the Guidelines range was sufficient, but not greater

than necessary, to comply with the § 3553(a) sentencing goals.



                                              7
      Alejo    fails        to    rebut      the   presumption     of    reasonableness

accorded     his   within-Guidelines               sentence.      The    court     clearly

considered the § 3553(a) factors and gave a reasoned explanation

for the sentence it imposed and its basis for rejecting Alejo’s

arguments for a lesser sentence.                      Rita v. United States, 551

U.S. 338, 356 (2007).                  The fact that he disagrees with the

district      court       does     not     render     the   sentence       substantively

unreasonable.         Cf.        Yooho Weon, 722 F.3d at 590.              Furthermore,

the   fact    that        the    pending      Guidelines       amendment       would    have

resulted      in      a     lower        Guidelines     range     does      not     render

unreasonable the imposed sentence, given that it was based on

the Guidelines in effect at the time of Alejo’s sentencing.

      Accordingly, we affirm the criminal judgment.                            We dispense

with oral argument because the facts and legal contentions are

adequately     presented          in   the    materials     before      this    court    and

argument would not aid the decisional process.

                                                                                  AFFIRMED




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