                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-4011


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

MARK DUNAJSKI,

                    Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina,
at Asheville. Martin K. Reidinger, District Judge. (1:17-cr-00003-MR-DLH-1)


Submitted: October 30, 2018                                 Decided: November 30, 2018


Before DUNCAN, KEENAN, and RICHARDSON, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Anthony Martinez, Federal Public Defender, Ross H. Richardson, Assistant Federal
Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Mark Dunajski appeals his conviction and sentence for knowingly importing

furanyl fentanyl, a Schedule I controlled substance, in violation of 21 U.S.C. §§ 952, 960

(2012). Dunajski pled guilty pursuant to a written plea agreement and was sentenced to

51 months in prison and 3 years of supervised release. On appeal, counsel for Dunajski

filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there

are no meritorious issues for appeal but questioning whether the district court erred in

calculating the quantity of drugs attributable to Dunajski. Dunajski filed a supplemental

pro se brief, arguing that the appellate waiver contained in his plea agreement is

unenforceable and reiterating counsel’s suggestion of procedural error at sentencing. The

government elected not to file a response to the Anders brief. ∗

       Dunajski was arrested after federal agents intercepted a package containing one

kilogram of furanyl fentanyl that was shipped from China to Dunajski’s residence. Four

days after Dunajski’s arrest and incarceration, federal agents intercepted a second

package containing one kilogram of furanyl fentanyl, this shipment apparently intended

as a replacement for the first package. On appeal, Dunajski questions whether the district

court erred in including as relevant conduct the drugs contained in the second package.

       The government must prove the drug quantity attributable to a defendant by a

preponderance of the evidence. United States v. McGee, 736 F.3d 263, 271 (4th Cir.

       ∗
         Because the Government has not sought to enforce the appellate waiver, we are
not limited by the waiver provision in conducting our full review of the record pursuant
to Anders. See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).


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2013). “Under the [Sentencing] Guidelines, the drug quantities that may be attributed to

the defendant include the quantities associated with the defendant’s offense of conviction

and any relevant conduct.” United States v. Flores-Alvarado, 779 F.3d 250, 255 (4th Cir.

2015). Relevant conduct “includes all reasonably foreseeable acts and omissions of

others in furtherance of the jointly undertaken criminal activity.” Id. (internal quotation

marks omitted); see U.S. Sentencing Guidelines Manual (USSG) § 1B1.3(a)(1)(B)

(2016). “[I]n order to attribute to a defendant for sentencing purposes the acts of others

in jointly-undertaken criminal activity, those acts must have been within the scope of the

defendant’s agreement and must have been reasonably foreseeable to the defendant.”

Flores-Alvarado, 779 F.3d at 255 (emphasis and internal quotation marks omitted).

Accordingly, sentencing courts are required “to make particularized findings with respect

to both the scope of the defendant’s agreement and the foreseeability of the conduct at

issue.” Id. at 256 (emphasis, brackets, and internal quotation marks omitted). “In doing

so, the court may consider any explicit agreement or implicit agreement fairly inferred

from the conduct of the defendant and others.” USSG § 1B1.3 cmt. n.3(B).

       We review for clear error “the district court’s calculation of the quantity of drugs

attributable to a defendant for sentencing purposes.” United States v. Crawford, 734 F.3d

339, 342 (4th Cir. 2013) (internal quotation marks omitted). Under this standard, we will

reverse the district court’s finding only if we are “left with the definite and firm

conviction that a mistake has been committed.” Id. (internal quotation marks omitted).

       Here, Dunajski admitted to federal agents that, when packages of drugs had been

lost or intercepted in the past, the supplier would ship a replacement package to Dunajski

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without any direct action on his part. We conclude that the district court did not clearly

err in finding the replacement package to be within the scope of Dunajski’s agreement

and reasonably foreseeable to him such that it qualified as relevant conduct under the

Sentencing Guidelines.

       To the extent that Dunajski challenges the voluntariness of his guilty plea, we have

reviewed the record and find his claim to lack merit. Before accepting Dunajski’s guilty

plea, the magistrate judge conducted a thorough plea colloquy, satisfying the

requirements of Fed. R. Crim. P. 11 and ensuring that Dunajski’s plea was knowing,

voluntary, and supported by an independent factual basis. See United States v. DeFusco,

949 F.2d 114, 116 (4th Cir. 1991). We also note that Dunajski affirmed at sentencing

that his answers at the plea colloquy had been and continued to be true and that he was

pleading guilty voluntarily.

       In accordance with Anders, we have reviewed the record in this case and have

found no meritorious issues for appeal. We therefore affirm the district court’s judgment.

This court requires that counsel inform Dunajski, in writing, of the right to petition the

Supreme Court of the United States for further review. If Dunajski 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 Dunajski.




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      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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