                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-4459


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ARNOLDO    SALAZAR    CASTILLO,    a/k/a   Edgar      Guadalupe
Medrano-Reyes,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:09-cr-00060-NCT-1)


Submitted:   June 29, 2011                 Decided:    July 13, 2011


Before WILKINSON, SHEDD, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas H. Johnson, Jr., GRAY, JOHNSON & LAWSON, LLP, Greensboro,
North Carolina, for Appellant. Ripley Rand, United States
Attorney, Harry L. Hobgood, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 A federal grand jury returned a three-count indictment

against Arnoldo Salazar Castillo.            Count one charged Castillo

with       conspiracy    to   distribute    100   kilograms    or     more   of

marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B),

846 (2006).          Count two charged Castillo with possessing with

intent to distribute approximately 4.36 kilograms of marijuana

in violation of § 841(a)(1), (b)(1)(D) (2006).                 Lastly, count

three charged Castillo with possession with intent to distribute

approximately 5.07 kilograms of marijuana, in violation of 21

U.S.C.      §    841(a)(1),   (b)(1)(D).    Castillo   filed   a    motion   to

suppress the evidence seized pursuant to warrants issued by a

state district court judge, claiming the warrants violated Fed.

R. Crim. P. 41(b)(1) because the warrants were not issued by a

“judge of a state court of record.”           Fed. R. Crim. P. 41(b)(1).

The district court denied the motion, and Castillo pled guilty,

pursuant to a plea agreement, to count two of the indictment.

The district court sentenced Castillo to forty-one months in

prison.         Castillo timely appealed.   We affirm.

                On appeal, Castillo first contends that the district

court erred in denying his motion to suppress. *                    This court


       *
       Castillo did not enter a conditional guilty plea pursuant
to Federal Rule of Criminal Procedure 11(a)(2).      Because an
unconditional guilty plea generally waives all antecedent,
(Continued)
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reviews factual findings underlying the district court’s denial

of     a    motion       to      suppress        for     clear        error    and    its     legal

conclusions de novo.                United States v. Blake, 571 F.3d 331, 338

(4th       Cir.    2009),       cert.    denied,         130    S.    Ct.     1104   (2010).        A

factual       finding       is    clearly        erroneous       if     this    court     “on     the

entire evidence is left with the definite and firm conviction

that a mistake has been committed.”                             United States v. Harvey,

532    F.3d       326,    337    (4th      Cir.      2008)     (internal       quotation     marks

omitted).           However,       “if     the    district       court’s       account      of    the

evidence      is     plausible        in     light       of    the    record    viewed      in    its

entirety,”         this     court       will     not     reverse       the    district      court’s

finding even if it would have “decided the fact differently.”

United States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005)

(internal quotation marks and alteration omitted).                                        In other

words,      when     two      views     of     the     evidence       are    permissible,        “the

district          court’s        choice        between         them     cannot       be     clearly




nonjurisdictional issues, Tollet v. Henderson, 411 U.S. 258,
266-67 (1973), Castillo’s right to challenge on appeal a Fourth
Amendment issue raised in a motion to suppress is waived by his
unconditional guilty plea.    However, the Government failed to
argue that Castillo waived his right to pursue these issues by
virtue of his guilty plea.      We thus accept the Government’s
invitation to consider the merits of Castillo’s appeal of the
denial of his motion to suppress. See United States v. Metzger,
3 F.3d 756, 757 (4th Cir. 1993).



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erroneous.”            Id.    (internal         quotation        marks    and    alteration

omitted).

            This        court       also   defers         to     the   district      court’s

credibility determinations, “for it is the role of the district

court to observe witnesses and weigh their credibility during a

pre-trial motion to suppress.”                       United States v. Abu Ali, 528

F.3d     210,    232        (4th    Cir.    2008)         (internal      quotation      marks

omitted).       This court construes the evidence in the light most

favorable       to    the    Government,        as    the      party   prevailing       below.

United States v. Griffin, 589 F.3d 148, 150 (4th Cir. 2009),

cert. denied, 131 S. Ct. 1599 (2011).

            Castillo does not contend that there was insufficient

probable cause for the state district court judge to issue the

warrants.       Nor does he argue that the good faith exception does

not apply.           Instead, he simply argues that the warrants were

issued in violation of Fed. R. Crim. P. 41(b)(1) because the

issuing judge was not a judge of a “state court of record in the

district.”           It is undisputed that the North Carolina district

court is not a court of record.

            This       court       has   held    that,      in   the   context    of     joint

state and federal undertaking, “Rule 41’s application must hinge

on whether the proceeding, as distinct from the investigation,

was federal.”          United States v. Claridy, 601 F.3d 276, 281 (4th

Cir.),    cert.        denied,      131    S.       Ct.    259    (2010).        When     such

                                                4
cooperation     occurs,      “investigating       violations        of   both    federal

and   state    law,    an    application      for   a   search       warrant     cannot

categorically be deemed a ‘proceeding’ governed by the Federal

Rules   of    Criminal      Procedure,    based     simply     on    the   role       that

federal law-enforcement officers played in the investigation.”

Id. at 282.      “[T]he fact that [the warrants] commanded a search

for evidence of a state-law violation would indicate that the

warrant      proceeding     was   a    state      proceeding,        not   one       under

Federal Rule 41(b).”           Id. at 283.          Our review of the record

leads us to conclude that the request for a search warrant from

the   North    Carolina      district     court     judge     was    not   a     federal

proceeding, and consequently, Fed. R. Crim. P. 41 did not apply.

              Next, Castillo contends that the district court erred

in basing his sentence on a drug quantity of 89.78 kilograms.

This court “review[s] the district court’s calculation of the

quantity of drugs attributable to a defendant for sentencing

purposes for clear error.”             United States v. Randall, 171 F.3d

195, 210 (4th Cir. 1999).             “Under this standard of review, this

Court   will    only   reverse    if     left   with    the    definite        and    firm

conviction that a mistake has been committed.”                      United States v.

Slade, 631 F.3d 185, 188 (4th Cir. 2011) (internal quotation

marks omitted).          In determining drug quantity for sentencing

purposes, where “the amount seized does not reflect the scale of

the offense, the court shall approximate the quantity of the

                                          5
controlled         substance.”          U.S.        Sentencing      Guidelines        Manual

(“USSG”) § 2D1.1 cmt. n.12 (2008); United States v. Cook, 76

F.3d 596, 604 (4th Cir. 1996).                     “The district court is afforded

broad discretion as to what information to credit in making its

calculations.”            Cook, 76 F.3d at 604 (internal quotation marks

omitted).       Our review of the record indicates that the district

court    did       not    clearly     err    in     determining       the     quantity    of

marijuana attributable to Castillo.

             Lastly,         Castillo       contends       that     his     sentence     was

unreasonable.            This court reviews a sentence for reasonableness,

applying     an      abuse    of    discretion         standard.       Gall     v.    United

States, 552 U.S. 38, 51 (2007); United States v. Layton, 564

F.3d 330, 335 (4th Cir. 2009).                      In so doing, the court first

examines       the       sentence     for     “significant         procedural        error,”

including “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.”                             Gall, 552

U.S.    at     51.         Finally,     the        court   then     “‘consider[s]        the

substantive         reasonableness       of    the      sentence     imposed.’”          Id.

(quoting Gall, 552 U.S. at 51).                     A sentence imposed within the

properly     calculated        Guidelines          range   is     presumed    reasonable.

United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir.

                                               6
2010).     After a thorough review of the record, we conclude that

Castillo’s     sentence   was   both    procedurally      and    substantively

reasonable.

            Accordingly, we affirm the judgment of the district

court.     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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