UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4486

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JOSE ALBERTO PADRON, a/k/a Mirio Alberto Lopez,

Defendant – Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Anderson. G. Ross Anderson, Jr., Senior 

District Judge. (8:08-cr-00628-GRA-12)

Submitted: December 9, 2010 Decided: January 3, 2011

Before DUNCAN and DAVIS, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Robert M. Sneed, ROB SNEED LAW FIRM, LLC, Greenville, South 

Carolina, for Appellant. Alan Lance Crick, Assistant United 

States Attorney, Greenville, South Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Jose Alberto Padron appeals the district court’s 

judgment imposing a sentence of 135 months in prison and 5 years 

of supervised release after he pled guilty to conspiracy to 

distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) 

(2006). Padron’s attorney has filed a brief pursuant to Anders 

v. California, 386 U.S. 738 (1967), asserting, in his opinion, 

there are no meritorious grounds for appeal, but raising the 

issue of whether the district court erred in applying a twolevel enhancement under U.S. Sentencing Guidelines Manual

§ 3B1.1(c) (2008). Padron was notified of his right to file a 

pro se supplemental brief but has not done so. We affirm.

We review a sentence under a deferential abuse-ofdiscretion standard. Gall v. United States, 552 U.S. 38, 51 

(2007). The first step in this review requires us to ensure 

that the district court committed no significant procedural 

error, such as improperly calculating the guideline range, 

failing to consider the 18 U.S.C. § 3553(a) (2006) factors, or 

failing to adequately explain the sentence. United States v. 

Carter, 564 F.3d 325, 328 (4th Cir. 2009). We then consider the 

substantive reasonableness of the sentence imposed, taking into

account the totality of the circumstances. Gall, 552 U.S. at 

51. On appeal, we presume that a sentence within a properly 
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calculated guideline range is reasonable. United States v. 

Allen, 491 F.3d 178, 193 (4th Cir. 2007).

The probation officer determined that Padron’s base 

offense level was thirty-four under USSG § 2D1.1(c)(3) based on 

the parties’ stipulation that he was responsible for at least 

1.5 kilograms but less than five kilograms of methamphetamine. 

The probation officer also determined that he was an organizer, 

leader, manager, or supervisor in a criminal activity and added 

two offense levels under USSG § 3B1.1(c). With a three-level 

reduction for acceptance of responsibility, and criminal history 

category I, Padron’s guideline range was 135 to 168 months. 

Neither party objected to the presentence report, and the 

district court adopted its findings and guideline calculations. 

The court sentenced Padron at the low end to 135 months.

On appeal, Padron contends that the district court 

clearly erred in imposing the two-level increase under USSG 

§ 3B1.1(c) “by failing to make any factual findings regarding 

the enhancement.” Because Padron did not raise this issue in 

the district court, our review is for plain error. See United 

States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010). To establish 

plain error, Padron must show (1) that the district court erred, 

(2) that the error is clear and obvious, and (3) that the error 

affected his substantial rights. See United States v. Olano, 

507 U.S. 725, 732-34 (1993). Even when this burden is met, we 
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have discretion whether to recognize the error, and should not 

do so unless the error “seriously affects the fairness, 

integrity or public reputation of judicial proceedings.” Id. at 

736 (quotation marks and alterations omitted). We have reviewed 

the record and conclude that Padron fails to make the required 

showing. As there were no objections, the district court was 

permitted to “accept any undisputed portion of the presentence 

report as a finding of fact,” Fed. R. Crim. P. 32(i)(3)(A), and 

the district court did not plainly err in doing so.

In accordance with Anders, we have reviewed the entire 

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 his client, in writing, 

of his right to petition the Supreme Court of the United States 

for further review. If the client 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 the client.

We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before the court and argument would not aid the decisional 

process.

AFFIRMED