                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4416


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

ASUNCION SARMINENTO ARGUELLO, a/k/a Asuncion Arguello Sarminento,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of South Carolina, at
Florence. R. Bryan Harwell, District Judge. (4:16-cr-00579-RBH-1)


Submitted: February 22, 2018                                 Decided: February 26, 2018


Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit
Judge.


Affirmed by unpublished per curiam opinion.


Louis H. Lang, CALLISON TIGHE & ROBINSON, LLC, Columbia, South Carolina, for
Appellant. Christopher Dolan Taylor, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Asuncion Sarminento Arguello pled guilty pursuant to a plea agreement to

conspiracy to possess with intent to distribute and to distribute heroin and cocaine, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(l)(C), 846 (2012), and was sentenced to 108

months’ imprisonment. On appeal, 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 court properly overruled his objection to a two-level

enhancement for possessing a dangerous weapon, U.S. Sentencing Guidelines Manual

§ 2D1.1(b)(1) (2016); and whether the sentence was reasonable. * Arguello was informed

of his right to file a pro se supplemental brief. We affirm.

       We review Arguello’s sentence for reasonableness, applying a deferential abuse-

of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). We first must

ensure that the district court committed no significant procedural error, such as improper

calculation of the Sentencing Guidelines range, inadequate consideration of the 18 U.S.C.

§ 3553(a) (2012) factors, or insufficient explanation of the sentence imposed. Id. In


*
  Counsel also questions the validity of the appellate waiver contained in Arguello’s plea
agreement. The Government has not sought to enforce the waiver in this case;
accordingly, we need not assess the validity and scope of the waiver in this proceeding
and may conduct a full review of the record as required by Anders. See United States v.
Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (noting that if Government does nothing in
response to Anders brief where appellant has waived his right to appeal, court will
perform required Anders review); see also United States v. Metzger, 3 F.3d 756, 757–58
(4th Cir. 1993) (holding that Government’s failure to assert appeal waiver as bar to
appeal constitutes waiver of reliance on appeal waiver).



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assessing challenges to the application of a specific Sentencing Guidelines provision, we

“review factual findings for clear error and legal conclusions de novo.” United States v.

Adepoju, 756 F.3d 250, 256 (4th Cir. 2014).

      If we find no significant procedural error, we also must consider the substantive

reasonableness of the sentence. United States v. Diosdado-Star, 630 F.3d 359, 363 (4th

Cir. 2011). We presume that a sentence within a properly-calculated Guidelines range is

substantively reasonable. United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).

Arguello bears the burden of rebutting this presumption “by showing that the sentence is

unreasonable when measured against the 18 U.S.C. § 3553(a) factors.” Id.

      The district court did not clearly err by imposing the two-level sentencing

enhancement based on the presence of a pistol in a truck Arguello and a coconspirator

were riding in while transporting drugs for the charged conspiracy. The Government met

its burden for application of the enhancement by linking the weapon and drug trafficking.

United States v. Bolton, 858 F.3d 905, 912 (4th Cir. 2017); see USSG § 2D1.1(b)(1), cmt.

n.11(A) (“The enhancement should be applied if the weapon was present, unless it is

clearly improbable that the weapon was connected with the offense.”).

      We conclude that Arguello’s sentence is reasonable. The district court correctly

calculated Arguello’s advisory Guidelines range as 108 to 135 months’ imprisonment,

based on a total offense level of 31 and criminal history category of I. The court listened

to the parties’ sentencing arguments and Arguello’s allocution, and it imposed the 108-

month sentence sought by Arguello, explaining that the within-Guidelines sentence was

warranted by the nature and circumstances of Arguello’s offense, his history and

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characteristics, and the need for the sentence to reflect the seriousness of the offense. See

18 U.S.C. § 3553(a)(1), (2)(A).       Arguello offers nothing on appeal to rebut our

presumption that his within-Guidelines sentence is substantively reasonable. Louthian,

756 F.3d at 306.

       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 Arguello, in writing, of his right to petition the

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