                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4203


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ELIAS GRADILLA HERNANDEZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:13-cr-00006-RLV-DSC-1)


Submitted:   September 25, 2014           Decided:   December 12, 2014


Before KEENAN, DIAZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Susan S. Kister, Chesterfield, Missouri, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Elias Gradilla Hernandez pleaded guilty, pursuant to a

written plea agreement, to conspiracy to distribute and possess

with intent to distribute at least five kilograms of cocaine, in

violation          of    21       U.S.C.     §§ 841(b)(1)(A),           846    (2012).          The

district court imposed a within-Guidelines sentence of eighty-

seven months.                Counsel has filed a brief pursuant to Anders v.

California,         386       U.S.    738     (1967),       stating     that    there     are    no

meritorious         issues          for    appeal,       but    questioning       whether       the

district       court          properly      calculated         Hernandez’s      base     offense

level      based        on    the     relevant       drug      quantity   and       whether     the

Government properly declined to file a motion for a downward

departure based on substantial assistance.                              Although advised of

his     right       to       do     so,    Hernandez        has   not     filed      a   pro     se

supplemental brief.                 The Government declined to file a response. ∗

We affirm.

               Counsel            first    questions        whether     the    district    court

properly calculated the relevant drug quantity in determining

Hernandez’s base offense level at sentencing.                             “[T]he government

must       prove    the        drug       quantity       attributable     to    a    particular

       ∗
       The Government has not sought enforcement of the waiver of
appellate rights.    See United States v. Poindexter, 492 F.3d
263, 271 (4th Cir. 2007) (recognizing that the government may
file a responsive brief raising the appellate waiver issue or do
nothing and allow this Court to perform the Anders review).



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defendant by a preponderance of the evidence.”                             United States v.

Bell, 667 F.3d 431, 441 (4th Cir. 2011).                           Because Hernandez did

not    object       to    the       applicable        drug    quantity    in        the   district

court, we review this claim for plain error.                              United States v.

Martinez, 277 F.3d 517, 524-26 (4th Cir. 2002) (stating standard

of    review).           To    prevail     under       this    standard,       Hernandez       must

establish that: “(1) there is an error, (2) the error is plain,

and (3) the error affects substantial rights.”                                      Henderson v.

United States, 133 S. Ct. 1121, 1126 (2013) (internal quotation

marks and alterations omitted).

              Under           U.S.    Sentencing            Guidelines    Manual          (“USSG”)

§ 1B1.3(a)(1), in determining the proper base offense level to

apply    to     a    defendant            involved       in    a   drug    conspiracy,          the

defendant is responsible not only for his own acts, but for “all

reasonably          foreseeable           acts        and     omissions        of     others    in

furtherance         of        the     jointly         undertaken    criminal          activity,”

whether or not the criminal activity is charged as a conspiracy.

See Bell, 667 F.3d at 441.                      If the district court relies on the

drug quantity included in the presentence report (“PSR”), the

defendant bears the burden of establishing that the information

is incorrect.            United States v. Carter, 300 F.3d 415, 425 (4th

Cir. 2002).

              Our review of the record leads us to conclude that the

district      court       did       not   err    in    determining       the    drug      quantity

                                                  3
attributable to Hernandez, as the PSR indicates that Hernandez

admitted his involvement in trafficking approximately fifty to

sixty        kilograms      of     cocaine.       Moreover,      Hernandez     has     not

established          that    the     information     contained     in    the    PSR    is

incorrect       or    unreliable.         Accordingly,      we    discern      no    plain

error.

               Counsel      next     questions     the   Government’s     failure       to

move for a downward departure pursuant to USSG § 5K1.1, despite

the assistance provided by Hernandez.                     The decision whether to

file     a    § 5K1.1       motion    lies    solely     within    the   Government’s

discretion.          United States v. Butler, 272 F.3d 683, 686 (4th

Cir. 2001).          Thus, unless the Government has obligated itself in

the plea agreement to make such a motion, its refusal to do so

is not reviewable absent evidence of an unconstitutional motive.

Wade v. United States, 504 U.S. 181, 185-87 (1992); Butler, 272

F.3d at 686.           Because nothing in the plea agreement obligated

the Government to make a § 5K1.1 motion and the record reveals

no basis for concluding that the Government’s decision was based

on an unconstitutional motive, we find no error.

               In accordance with the requirements of Anders, we have

examined the entire record and have found no meritorious issues.

We therefore affirm the district court’s judgment.                          This Court

requires that counsel inform Hernandez, in writing, of the right

to petition the Supreme Court of the United States for further

                                              4
review.     If Hernandez 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 Hernandez.         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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