                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4112


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ESTEBAN SALGUERO-ORTIZ, a/k/a Cadejo,

                Defendant - Appellant.



                            No. 11-4288


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JAMIN OLIVA-MADRID,

                Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:10-cr-00191-JCC-9; 1:10-cr-00191-JCC-6)


Argued:   May 18, 2012                       Decided:    June 21, 2012


Before TRAXLER,   Chief   Judge,   and   GREGORY   and   DIAZ,   Circuit
Judges.
Affirmed by unpublished per curiam opinion.


ARGUED:   David  Benjamin   Smith,  SMITH   &  ZIMMERMAN,   PLLC,
Alexandria, Virginia; Gregory Bruce English, THE ENGLISH LAW
FIRM, PLLC, Alexandria, Virginia, for Appellants.    Chad Golder,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.   ON BRIEF: Neil H. MacBride, United States Attorney,
Karen L. Dunn, Assistant United States Attorney, Courtney
Weiner, Special Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Jamin      Oliva-Madrid            (“Oliva”)    and    Esteban     Salguero-Ortiz

(“Salguero”)      were    convicted         and     sentenced     for      conspiracy   to

distribute      cocaine.           On    appeal,    Salguero      contends     that     the

evidence supporting his conviction was insufficient, and Oliva

and Salguero also challenge their sentences on various grounds.

For the reasons that follow, we affirm.



                                             I.

     Oliva and Salguero were two of fifteen people indicted in a

cocaine distribution scheme that involved importing cocaine from

Mexico   into    Texas     and      distributing       it    in   Maryland,        Northern

Virginia, Philadelphia, and elsewhere.                       Oliva was involved in

the conspiracy in Virginia, where he owned a granite business

called JD Granite Countertops, Inc. that was used to further the

conspiracy.      Salguero played a lesser role in the conspiracy in

the Philadelphia area.

     After a jury trial, both Oliva and Salguero were convicted

of conspiracy to distribute five kilograms or more of cocaine,

in violation of 21 U.S.C. §§ 841(a)(1), 846.                      At sentencing, the

district     court     found       Oliva     accountable      for     at    least    sixty

kilograms of cocaine, applied a three-level enhancement for his

managerial      role     in    the        conspiracy,       and   imposed      a     below-

guidelines      sentence      of    188     months’    imprisonment.           The    court

                                              3
found Salguero accountable for fifteen kilograms of cocaine and

sentenced him to 151 months’ imprisonment, the low end of the

advisory sentencing range.



                                              II.

       We   begin     by   addressing         Oliva’s      claim     that   the    district

court made two errors at sentencing.                        Oliva first argues that

the    district     court    improperly            attributed      sixty    kilograms      of

cocaine to him.        He also maintains that the district court erred

in applying an aggravating role enhancement.                            We address the

drug quantity claim first.

                                              A.

       “We review the district court's calculation of the quantity

of drugs attributable to a defendant for sentencing purposes for

clear error.”         United States v. Slade, 631 F.3d 185, 188 (4th

Cir.   2011)    (internal     quotation            marks   omitted).        Oliva    is   in

agreement with the government that the evidence at trial proved

that   Javier     Maldonado,       a    co-conspirator,            transported      cocaine

from    Texas    to    Virginia        on    ten     different       occasions.       Oliva

disputes,      however,     the    average         quantity     of    cocaine     that    was

transported in each trip.

       At   sentencing,        the          district       court      attributed     sixty

kilograms of cocaine to Oliva, but Oliva contends that he could

only   be   accountable      for       forty       to   fifty   kilograms     of    cocaine

                                               4
based on a statement made by Maldonado that, on average, only

four    to    five   kilograms     were     transported       in   each     trip.     In

another portion of Maldonado’s own testimony, however, he stated

that the average amount of cocaine transported per trip was “5

kilos,    6    kilos.”      J.A.    80.         Moreover,     contrary      to   Oliva’s

contention that the maximum amount of cocaine transported in any

given trip to Virginia was seven kilograms, there is evidence in

the record that ten kilograms of cocaine were transported in a

single trip to Virginia.             Under these circumstances, we cannot

say that the district court committed clear error in attributing

sixty    kilograms     of   cocaine    to       Oliva.       See   United    States   v.

Randall, 171 F.3d 195, 210 (4th Cir. 1999) (“A district court’s

approximation of the amount of drugs is not clearly erroneous if

supported      by    competent     evidence       in   the    record.”);     see    also

United States v. Uwaeme, 975 F.2d 1016, 1019 (4th Cir. 1992)

(“Neither the Guidelines nor the courts have required precise

calculations of drug quantity.”).

       In any event, even if the district court’s drug quantity

calculation was clearly erroneous, the error would be harmless.

See United States v. Cabrera-Beltran, 660 F.3d 742, 756 (4th

Cir. 2011) (applying harmless error doctrine to drug quantity

calculation).        Under the assumed error harmlessness inquiry, we

consider (1) whether “the district court would have reached the

same result even if it had decided the guidelines issue the

                                            5
other way,” and (2) whether “the sentence would be reasonable

even if the guidelines issue had been decided in the defendant's

favor.”      United States v. Savillon-Matute, 636 F.3d 119, 123

(4th     Cir.    2011)     (internal    quotation             marks   omitted).          The

district    court       stated   in   its   sentencing          order    that    “even    if

Defendant were correct regarding drug quantity . . ., this Court

would still impose a sentence of 188 months[’] imprisonment.”

J.A. 567D.        The court also imposed a below-guidelines sentence

to create parity between Oliva’s sentence and that of a co-

conspirator whom the court believed to be equally as culpable as

Oliva.      On    appeal,    Oliva    does       not    challenge       the    substantive

reasonableness of his sentence, and we find that it would be

reasonable       even    accepting     Oliva’s         drug    quantity       calculation.

Therefore, any error in the drug calculation would be harmless.

See United States v. Mehta, 594 F.3d 277, 283 (4th Cir. 2010)

(noting that “error is harmless if the resulting sentence was

not longer than that to which the defendant would otherwise be

subject” (alteration and internal quotation marks omitted)).

                                            B.

       Oliva also challenges the district court’s application of

an aggravating role enhancement, which provides, in pertinent

part, that “[i]f the defendant was a manager or supervisor (but

not an organizer or leader) and the criminal activity involved

five or more participants or was otherwise extensive, increase

                                            6
by 3 levels.”         U.S.S.G. § 3B1.1(b) (2010).               We review this claim

for clear error.            See United States v. Sheffer, 896 F.2d 842,

846 (4th Cir. 1990).

      There     is    no    dispute   that       this    criminal          conspiracy      was

“otherwise extensive.”            Oliva contends, however, that he was not

a “manager or supervisor.”               We disagree.               Oliva recruited his

girlfriend, Nuria, to sell cocaine in Manassas, Virginia; he

supervised Nuria’s activities for a period of time; and he wrote

several     checks     amounting      to    $57,000       to    the     leader       of    the

conspiracy,      Jorge      Gutierrez,      in    order        to    pay    for     cocaine.

Given   these    facts,      we   find     that   the     district         court    did    not

clearly err in applying the sentence enhancement.                            See U.S.S.G.

§   3B1.1     cmt.    n.4    (discussing        decision-making            authority       and

recruitment of accomplices).

      In any event, the district court explained at sentencing

that “even if Defendant were correct . . . regarding his role in

the offense as being minor relative to his coconspirators, this

Court would still impose a sentence of 188 months.”                              J.A. 567D.

And we find that the sentence would be reasonable even without

application      of    the    enhancement.              Therefore,         any     error   in

applying the enhancement was harmless.                    See Savillon-Matute, 636

F.3d at 123-24; Mehta, 594 F.3d at 283.




                                            7
                                      III.

     We turn now to Salguero’s arguments.                     Salguero contends

that the evidence was insufficient to support his conviction.

He also argues that the district court made three errors at

sentencing.     We begin with Salguero’s sufficiency challenge.

                                       A.

     Salguero    was   convicted      of    conspiracy    to       distribute    five

kilograms or more of cocaine.              On appeal, he concedes that he

was part of the conspiracy but maintains that the evidence was

sufficient only to prove the offense of conspiracy to distribute

500 grams or more of cocaine.          See United States v. Stewart, 256

F.3d 231, 256 (4th Cir. 2001) (explaining that drug quantity

must be found by a jury beyond a reasonable doubt).

     “We review the sufficiency of the evidence to support a

conviction by determining whether there is substantial evidence

in the record, when viewed in the light most favorable to the

government,     to   support   the    conviction.”            United    States    v.

Jaensch, 665 F.3d 83, 93 (4th Cir. 2011) (internal quotation

marks   omitted).      “[S]ubstantial        evidence    is    evidence    that    a

reasonable    finder    of     fact    could     accept       as     adequate    and

sufficient to support a conclusion of a defendant's guilt beyond

a reasonable doubt.”      United States v. Burgos, 94 F.3d 849, 862

(4th Cir. 1996) (en banc).



                                       8
     The evidence at trial established that Salguero worked with

a   co-conspirator       named    Edin     Miguel      Esteban-Esteban       (a.k.a.

“Guero”) to accept two deliveries of cocaine.                      In the first

delivery, two other co-conspirators met Salguero and Guero at a

store in Philadelphia and removed three kilograms of cocaine

from their vehicle while Salguero and Guero stood nearby and

observed; and Guero ultimately took possession of the cocaine.

In the second delivery, three other co-conspirators, including

Maldonado, met Salguero and Guero in Philadelphia and delivered

two additional kilograms of cocaine.                  Maldonado first testified

that he gave the two kilograms of cocaine to Salguero, but he

later claimed that Guero took possession of the cocaine.

     Salguero      concedes      that    he   was     “linked”    to   the     second

delivery of two kilograms of cocaine, but he argues that the

first     delivery   of     three       kilograms      of   cocaine    cannot     be

attributed    to   him    because   “the      first    shipment   went    to    Guero

alone.”    App. Brief at 27.        We disagree.

     Under Pinkerton v. United States, 328 U.S. 640 (1946), “a

person [is] liable for substantive offenses committed by a co-

conspirator when their commission is reasonably foreseeable and

in furtherance of the conspiracy.”              United States v. Ashley, 606

F.3d 135, 142-43 (4th Cir. 2010).               This extension of liability

applies to quantities of drugs within a conspiracy.                      See United

States v. Brooks, 524 F.3d 549, 558 (4th Cir. 2008) (“[A] trial

                                          9
court is obliged to instruct a jury to use Pinkerton principles

to    determine           the    quantity              of        drugs       attributable      to    each

individual defendant involved in a drug conspiracy.” (internal

quotation marks omitted)).                         There can be no dispute that the

three        kilograms          of        cocaine           in     the       first    delivery       were

transferred          to     Salguero             and     Guero          in      furtherance     of     the

conspiracy.          Moreover, Salguero was present for the delivery of

the   three     kilograms,                and    according            to     Maldonado’s     testimony,

Salguero worked with Guero.                            These facts alone would enable a

reasonable juror to find Salguero liable for the distribution of

all   five     kilograms             of    cocaine.              In     addition,     the    government

introduced          audio       recordings             of        Salguero        arranging     for     the

shipment       of    another          ten       kilograms          of      cocaine   and     seeking    to

purchase       yet    another             kilogram          of     cocaine.          Thus,    there     is

substantial evidence in the record to support his conviction.

                                                       B.

        We    turn    finally             to    Salguero’s              three    challenges     to     his

sentence.

                                                       1.

      Salguero        first          claims       that       the        district     court    erred     in

attributing at least fifteen but less than fifty kilograms of

cocaine to him for sentencing purposes.                                       We review this claim

for clear error.                See Slade, 631 F.3d at 188.                          “[T]he district

court may attribute to the defendant the total amount of drugs

                                                       10
involved in the conspiracy, provided the drug quantities were

reasonably foreseeable to the defendant and are within the scope

of the conspiratorial agreement.”              Randall, 171 F.3d at 210.       We

find       that   the     five     kilograms    of    cocaine    delivered     in

Philadelphia, the ten kilograms of cocaine to be shipped, and

the one additional kilogram of cocaine to be purchased—amounting

to sixteen kilograms of cocaine—were reasonably foreseeable to

Salguero and within the scope of his conspiratorial agreement.

Therefore, the district court did not clearly err in attributing

at least fifteen kilograms of cocaine to Salguero for sentencing

purposes.

                                          2.

       Salguero next contends that the district court should have,

sua sponte, raised the issue of whether his deportable status

justified a downward variance from the guidelines.                      He argues

that because of his deportable status, he will be ineligible for

the benefits of 18 U.S.C. § 3624(c) and will, therefore, be

subjected to harsher conditions than will an otherwise identical

citizen. *        While   we     have   implicitly   concluded   that    district

       *
       18 U.S.C. § 3624(a)(1) provides that “[t]he Bureau of
Prisons shall, to the extent practicable, assure that a prisoner
serving a term of imprisonment spends a reasonable part, not to
exceed six months, of the last 10 per centum of the term to be
served under conditions that will afford the prisoner a
reasonable opportunity to adjust to and prepare for the
prisoner’s re-entry into the community.”


                                          11
courts have the discretion to impose below-guidelines sentences

for this reason, see United States v. Hyppolite, 65 F.3d 1151,

1159   (4th   Cir.     1995),    we    have     never   suggested      that    district

courts are required to do so.                 Moreover, the cases relied upon

by   Salguero    speak      in   discretionary,         rather    than    obligatory,

terms.    See United States v. Farouil, 124 F.3d 838, 847 (7th

Cir. 1997) (concluding that “[t]he district court is thus free

to   consider”    a       defendant’s      alien    status      (emphasis      added));

United   States      v.    Smith,     27   F.3d    649,   650    (D.C.    Cir.     1994)

(considering      “whether       a    sentencing        court    may     depart”    and

“hold[ing]      such      departures       permissible”         (emphasis      added)).

Accordingly, the district court did not err by failing to raise

this issue sua sponte.

                                           3.

       Finally, Salguero argues that the district court committed

procedural      error      by    failing      to   provide       an    individualized

sentence.       During his sentencing hearing, Salguero emphasized

that he was a good man, was a hard worker who provided for his

family, had no criminal history, and was deportable.                            Without

explaining how the sentencing factors enumerated at 18 U.S.C. §

3553(a) applied to these personal circumstances, the district

court stated, “I think considering the 18 U.S.C. 3553 factors[,

the guidelines] range is appropriate.”                    J.A. 531.           The court

then imposed a bottom-of-the-guidelines sentence.

                                           12
     On appeal, the government concedes that the district court

committed     procedural      error       but    argues     that    the    error      was

harmless.        Although     we    are    not    bound     by     the    government’s

concession of error, see United States v. Rodriguez, 433 F.3d

411, 414 n.6 (4th Cir. 2006), we agree with the government that

any error was harmless.

     Salguero’s arguments were relatively weak and provided no

concrete basis for distinguishing him from the many other first-

time offenders who support their families.                       The district court

listened    to    Salguero’s       statements     and     arguments      and,    shortly

thereafter,      asserted   that     it    had   arrived     at    the    sentence     by

considering the relevant factors.                 Thus, “we can say with fair

assurance that the district court’s explicit consideration of

[Salguero’s]      arguments     would      not   have     affected       the    sentence

imposed.”        United States v. Boulware, 604 F.3d 832, 838 (4th

Cir. 2010) (alterations and internal quotation marks omitted);

cf. United States v. Lynn, 592 F.3d 572, 585 (4th Cir. 2010)

(vacating and remanding for resentencing based on “the strength

of Lynn’s arguments for a different sentence,” which were not

explicitly       considered).          Accordingly,         we     find        that   any

procedural sentencing error was harmless.




                                           13
                                 IV.

     For   the   foregoing   reasons,   Salguero’s   conviction   and

sentence are affirmed and Oliva’s sentence is also affirmed.



                                                            AFFIRMED




                                 14
