     Case: 12-41257      Document: 00512561767         Page: 1    Date Filed: 03/14/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                    No. 12-41257                              FILED
                                  Summary Calendar                      March 14, 2014
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

PEDRO OBRAJERO-SANCHEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:11-CR-78-2


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Pedro Obrajero-Sanchez pleaded guilty to conspiracy to possess with
intent to distribute heroin and was sentenced to 135 months of imprisonment
and five years of supervised release. On appeal, he argues that (1) the district
court erred by applying an adjustment under U.S.S.G. § 3B1.1(a) for his role
in the offense, (2) the district court failed to provide sufficient notice that it
would apply the § 3B1.1(a) adjustment, (3) the district court failed to make an


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 12-41257

explicit finding regarding the reliability and credibility of the witnesses who
testified at sentencing, and (4) the presentation of witnesses at sentencing to
increase his sentence violated his due process, equal protection, and Eighth
Amendment rights.
      As part of his written plea agreement, Obrajero-Sanchez waived his right
to appeal his conviction and sentence. Although Obrajero-Sanchez did not
challenge the validity of the appeal waiver in his opening brief, we cannot
ascertain whether he knowingly and voluntarily waived his right to appeal
because the rearraignment transcript containing his guilty plea is not part of
the record on appeal. Because Obrajero-Sanchez’s challenge to his sentence
fails, we pretermit consideration of the effect of the appeal waiver. See United
States v. Hilterbrand, 538 F. App’x 394, 394 (5th Cir.), cert. denied, 134 S. Ct.
536 (2013); United States v. Story, 439 F.3d 226, 230-31 (5th Cir. 2006).
      Obrajero-Sanchez’s constitutional challenges to the district court’s
reliance upon witness testimony at sentencing to support the § 3B1.1(a)
adjustment lack merit. See United States v. Whitfield, 590 F.3d 325, 367 (5th
Cir. 2009); United States v. Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir.
1993). His challenges to the procedural reasonableness of his sentence fail to
establish any errors. See United States v. Delgado-Martinez, 564 F.3d 750, 752
(5th Cir. 2009).   Even if notice had been required under Federal Rule of
Criminal Procedure 32(h), the district court provided notice to Obrajero-
Sanchez that it could apply the § 3B1.1(a) adjustment at sentencing.
Moreover, he has failed to show that the district court clearly erred by
determining that he was a leader or organizer of a criminal activity that
involved five or more participants for purposes of § 3B1.1(a). See United States
v. Alaniz, 726 F.3d 586, 622 (5th Cir. 2013).




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                                No. 12-41257

     Accordingly, in light of the foregoing, the Government’s motion to
summarily dismiss Obrajero-Sanchez’s appeal is DENIED, the Government’s
motion in the alternative for an extension of time in which to file a brief is
DENIED as unnecessary, and the judgment of the district court is AFFIRMED.




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