                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4194


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

WILLIAM ORTIZ LAZARO,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:08-cr-00511-WDQ-3)


Submitted:   September 28, 2011           Decided: October 13, 2011


Before SHEDD, AGEE, and KEENAN, Circuit Judges.


Affirmed in part, dismissed in part by unpublished per curiam
opinion.


Francis S. Brocato, BROCATO, PRICE & JANOFSKY, LLC, Towson,
Maryland, for Appellant.     Rod J. Rosenstein, United States
Attorney, Michael C. Hanlon, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              William      Ortiz    Lazaro          seeks    to    appeal      his   135-month

sentence      imposed      following       his       guilty        plea,    pursuant     to   a

written plea agreement, to one count of Hobbs Act robbery, in

violation of 18 U.S.C. § 1951(a) (2006) (“Count Fourteen”), and

one count of possession of a firearm in furtherance of a crime

of    violence,      in    violation       of       18    U.S.C.        § 924(c)(1)(A)(ii),

(C)(i) (2006) (“Count Fifteen”).                         On appeal, Lazaro contends

that    the    district      court       applied         the      incorrect     standard      in

determining        whether    a    five-    or        seven-year         statutory     minimum

applied       on   Count     Fifteen,       erred           in    applying      a    six-level

enhancement on Count Fourteen, and erred in failing to compare

Lazaro’s sentence to those of his codefendants.                                 In response,

the    Government       asserts     that        Lazaro’s          appellate     waiver     bars

review of his second and third claims.

              We conclude that Lazaro’s appellate waiver was knowing

and voluntary, as the district court fully questioned Lazaro

regarding      the   waiver,       and    the       totality       of    the   circumstances

indicates that Lazaro understood the waiver’s significance.                                See

United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).

Because his second and third claims fall within the scope of the

waiver, see United States v. Blick, 408 F.3d 162, 168 (4th Cir.

2005), we agree with the Government and dismiss these claims.



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             As to Lazaro’s preserved claim, we affirm.                               Lazaro

argues that the district court erred in determining whether he

was subject to a five- or seven-year statutory minimum on Count

Fifteen by evaluating whether it was reasonably foreseeable that

his codefendants would brandish their firearms.                          In assessing a

challenge     to    a    sentence     enhancement,        we    review     the      district

court’s     factual        findings     for      clear       error     and     its    legal

conclusions de novo.          United States v. Carter, 601 F.3d 252, 254

(4th Cir. 2010).

             Section       924(c)(1)(A)       requires         the    imposition       of   a

consecutive     five-year      sentence         where    a     defendant      possesses      a

firearm in furtherance of a crime of violence; however, “if the

firearm is brandished, [the defendant shall] be sentenced to a

term of imprisonment of not less than 7 years.”                                  18 U.S.C.

§ 924(c)(1)(A)(ii).          “A defendant may be convicted of a § 924(c)

charge on the basis of a coconspirator’s use of a gun if the use

was   in    furtherance        of     the     conspiracy        and    was     reasonably

foreseeable to the defendant.”                   United States v. Wilson, 135

F.3d 291, 305 (4th Cir. 1998).                    Moreover, a defendant may be

convicted of a § 924(c) offense on the basis of coconspirator

liability even without a separate conspiracy charge.                                  United

States v. Zackery, 494 F.3d 644, 647-48 (8th Cir. 2007); cf.

United     States   v.     Ashley,    606     F.3d      135,    143   (4th     Cir.    2010)

(holding     that       vicarious    coconspirator           liability       need    not    be

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charged in the indictment).                        Applying these standards, we hold

that   the    district          court        correctly        determined            the    applicable

statutory minimum.               Lazaro’s companion claim that the district

court improperly assessed whether the brandishing was reasonably

foreseeable        in     order      to      determine          whether       Lazaro       aided      and

abetted      the       brandishing          is     similarly       without          merit,       as   the

district      court        made        no     aiding       or     abetting          determination.

Rather,      the       court     merely           applied       the     seven-year          statutory

minimum      to     Lazaro        on        the     ground      that         it    was     reasonably

foreseeable         that       Lazaro’s           codefendants         would       brandish       their

weapons.

              For        the     foregoing              reasons,        we        affirm     Lazaro’s

convictions,           which    he     does       not    challenge       on       appeal,     and     the

district court's ruling as to Lazaro’s claim of error on Count

Fifteen.          We    dismiss        his       claims    as     to    Count       Fourteen.          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 IN PART,
                                                                                  DISMISSED IN PART




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