1

The case was originally calendared for oral argument before

this panel of judges. Judge Johnston, however, recused himself from

the case. The case was removed from the oral argument calendar.

The decision is filed by a quorum of the panel pursuant to 28

U.S.C. § 46(d).

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4524

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARIO PIEDRO LIBERATO, a/k/a Carlos,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Harrisonburg. Samuel G. Wilson, District

Judge. (CR-04-37-SGW)

Submitted: September 11, 2006 Decided: November 9, 2006

Before WILLIAMS and GREGORY, Circuit Judges, and Thomas E.

JOHNSTON, United States District Judge for the Southern District of

West Virginia, sitting by designation.1

Affirmed by unpublished per curiam opinion.

Roland M. L. Santos, Harrisonburg, Virginia, for Appellant. John

L. Brownlee, United States Attorney, Joseph W. H. Mott, Assistant
2

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,

Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
2

Liberato does not challenge his conviction on the illegal

reentry charge.

3

PER CURIAM:

Mario Piedro Liberato pleaded guilty to one count of illegal

reentry into the United States after deportation for an aggravated

felony, in violation of 8 U.S.C.A. §§ 1326(a), (b)(2) (West 2005),

and to one count of conspiracy to distribute in excess of 5

kilograms of cocaine, 1,000 kilograms of marijuana, and 50 grams of

methamphetamine, in violation of 21 U.S.C.A. §§ 846 and 841(a)

(West 1999).2

 On appeal, Liberato contends that the district court

erred in accepting his guilty plea and in failing to treat drug

quantity as an element of the offense under § 841(a). Finding no

reversible error, we affirm.

I. 

On November 17, 2004, a grand jury returned a five-count

indictment against Liberato for his involvement in a wide-ranging

drug conspiracy. One count of the indictment charged Liberato

under 21 U.S.C.A. §§ 846 and 841(a)(1) with conspiracy to

distribute in excess of 5 kilograms of cocaine, 1,000 kilograms of

marijuana, and 50 grams of methamphetamine. Liberato entered into

a written plea agreement with the Government, in which he pleaded

guilty to the drug conspiracy count and to another count charging

him with illegal reentry into the United States after deportation

for conviction of an aggravated felony. The parties made no
3

The Government does not raise the issue of Liberato’s waiver

of these rights. We therefore decline to raise the issue sua

sponte. See United States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir.

2000)(“[T]he Government expressly elected not to argue waiver ...

and we decline to determine whether [the defendant] waived this

issue in the absence of argument by the parties.”).

4

agreement as to the kinds or quantities of drugs attributable to

Liberato, either for guidelines or statutory penalty purposes, and

instead agreed that the district court would make all quantity

determinations at sentencing. Liberato waived his rights to appeal

sentencing guidelines issues and to collaterally attack the

district court’s judgment.3 Liberato also acknowledged that the

agreement subjected him to the maximum penalties for the object

drug offenses -- life in prison and a mandatory minimum of twenty

years in prison -- based on his prior felony drug conviction. The

parties agreed that the plea was not an admission of responsibility

for any quantity of drugs. 

During the guilty plea hearing, the district court conducted

an extensive Rule 11 colloquy with Liberato. The Government

recited the terms of the plea agreement, and Liberato’s counsel

acknowledged that the Government’s recitation reflected her

understanding of the agreement. Liberato stated that the agreement

had been read to him by his counsel and that “I understood

everything, I just disagree with some part of it.” (J.A. at 50.)

Liberato then admitted his involvement in the marijuana conspiracy,

but he stated that he would “not take responsibility for cocaine or
5

methamphetamines or any other drugs that they’re bringing in to

me.” (J.A. at 51.) 

Liberato’s counsel immediately spoke up and stated that

“[Liberato] understands that that was part of the conspiracy.”

(J.A. at 51.) After the Government explained that Liberato was

admitting to the conspiracy but denying responsibility for

distributing cocaine and methamphetamine as part of that

conspiracy, the court asked Liberato if this was correct. Liberato

responded that it was. 

At this point the district court expressed some concern as to

how he could accept Liberato’s guilty plea to a conspiracy that

involved cocaine and methamphetamine when Liberato only admitted to

involvement in marijuana. The Government responded that the plea

agreement reserved to the district court the authority to determine

which drugs would be attributed to Liberato. The district court

then asked Liberato a number of questions to ensure that he

understood the consequences of his guilty plea, including asking

whether Liberato understood that he was agreeing to allow the

district court to determine the exact quantity of marijuana

attributable to him and to determine whether any cocaine or

methamphetamine would be attributed to him. The district court

took a recess to give Liberato and his counsel an opportunity to

make sure that Liberato completely understood the consequences of

his plea. 
4

In making this quantity determination, the district court was

required to apply the principles of Pinkerton v. United States, 328

U.S. 640, 646-47 (1946): Liberato could only be responsible for

drug quantities attributed to the overall conspiracy that were both

within the scope of Liberato’s individual agreement to the

conspiracy and reasonably foreseeable to him. Id.; see also

United States v. Collins, 415 F.3d 304, 313-14 (4th Cir.

2005)(stating that, while the Pinkerton principles “have no

applicability to a conviction under [21 U.S.C.A.] § 846,” they

should be used under § 841(b) in determining “the amount of

narcotics attributable to any one individual in a conspiracy”).

6

After the recess, Liberato’s counsel stated that it was her 

“firm belief” that Liberato understood “exactly” the consequences

of his plea and that it would be up to the district court to

determine the type and amount of drugs attributable to him in the

conspiracy.4 (J.A. at 57.) The court again asked Liberato a

number of questions to ensure that he completely understood the

consequences of his guilty plea, repeating the fact that Liberato

was leaving it to the court to decide whether the cocaine and

methamphetamine were attributable to him. To each question,

Liberato replied that he understood. Liberato stated that he was

pleading guilty because he was in fact guilty of the conspiracy.

The district court then heard a lengthy recitation of the

factual basis for the pleas. Liberato stated that he agreed with

the recitation, save the part relating to cocaine and

methamphetamine. The district court found that the plea was

knowing and voluntary and that it was “supported by an independent

basis in fact insofar as it relates to a conspiracy to distribute

marijuana . . . .” (J.A. at 90.) The court held under advisement
7

whether there was an independent basis for attributing the cocaine

or methamphetamine to Liberato. 

The presentence report (PSR) attributed 1,500 pounds of

marijuana, 13 kilograms of cocaine powder, and 8.5 ounces of

methamphetamine to Liberato. At sentencing, a co-conspirator, two

case agents, and Liberato testified on quantity issues and on an

obstruction enhancement for threats that Liberato made toward the

co-conspirator. The district court found “beyond a reasonable

doubt as to the question of weight that the weight involved more

than a thousand kilograms of marijuana that was the object of the

conspiracy into which the defendant had entered.” (J.A. at 219.)

The district court also sustained Liberato’s objection to the PSR,

declining to attribute any cocaine or methamphetamine to him. The

court sentenced Liberato within the Guidelines to 360 months’

imprisonment. Liberato timely noted an appeal. We have

jurisdiction pursuant to 28 U.S.C.A. § 1291 (West 2006).

II.

Liberato contends that the district court erred in accepting

his guilty plea in the face of his refusal to admit involvement in

all the drugs charged in the indictment. Because Liberato did not

object or withdraw his guilty plea in the district court on the

basis of this alleged error, we review for plain error. United

States v. Vonn, 535 U.S. 55, 59 (2002)(holding that in the Rule 11
8

context “a silent defendant has the burden to satisfy the plainerror rule”); United States v. Martinez, 277 F.3d 517, 525-527 (4th

Cir. 2002) (same). Under plain error review, Liberato must show

that (1) the district court committed an error, (2) the error was

plain, and (3) the error affected his substantial rights, i.e.,

that the error affected the outcome of the district court’s

proceedings. United States v. Olano, 507 U.S. 725, 732-34 (1993);

United States v. Hughes, 401 F.3d. 540, 547-48 (4th Cir. 2005).

Even if Liberato makes this showing, we should only notice the

error if the error “seriously affects the fairness, integrity or

public reputation of judicial proceedings.” Hughes, 401 F.3d at

555 (internal quotation marks and citation omitted).

 A drug conspiracy exists “when there is an agreement to

engage in one overall venture to deal in drugs.” United States v.

Bowens, 224 F.3d 302, 307 (4th Cir. 2000). It is axiomatic that

once a conspiracy is proven, “a defendant need not be involved in

every phase of that conspiracy to be deemed a participant.” United

States v. Leavis, 853 F.2d 215, 218 (4th Cir. 1988). Indeed, we

have not required a defendant facing a multi-drug conspiracy count

to admit involvement in all charged drugs for the district court to

accept the defendant’s guilty plea. See United States v. Scheetz,

293 F.3d 175, 187-88 (4th Cir. 2002)(affirming the district court’s

acceptance of a guilty plea to a multi-drug conspiracy count even

though the defendant denied responsibility for one of the object

drugs). Liberato’s argument is also undercut by the fact that the
5

“Specific threshold drug quantities” are those quantities of

drugs set forth in 21 U.S.C.A. §§ 841(b)(1)(A), (b)(1)(B), a

finding of which subjects a defendant to a sentence of ten years to

life imprisonment (§ 841(b)(1)(A)) or five to forty years

imprisonment (§ 841(b)(1)(B)).

9

district court expressly did not attribute any amount of cocaine or

methampetamine to him; functionally, then, the district treated his

plea as if the indictment only charged a conspiracy to distribute

marijuana. Accordingly, the district court did not err in

accepting Liberato’s guilty plea solely because he did not assume

responsibility for all the drugs charged in the indictment.

As a corollary to his argument, and in an attempt to implicate

our decision in United States v. Promise, 255 F.3d 150 (4th Cir.

2001)(en banc), Liberato also contends that the district court

erred in accepting his guilty plea to the multi-drug conspiracy

indictment because, in so doing, the district court failed to treat

the threshold quantities charged in the indictment as elements of

the offense. In Promise, we held, in the wake of the Supreme

Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000),

that the specific threshold drug quantities listed in 21 U.S.C.A.

§ 841(b) are not mere sentencing factors but are elements of

separate aggravated drug offenses that must be charged in the

indictment and proved to the jury beyond a reasonable doubt or

admitted by the defendant.5 Id. at 156-57. Promise made clear

that § 841 is a “multi-offense statute, with the baseline offense

being drug distribution without a quantity finding, § 841(b)(1)(C),
6

Because the district court sustained Liberato’s objection to

the PSR’s attribution of cocaine and methamphetamine to Liberato,

the court did not rely on the PSR’s base offense level calculation.

Based on Liberato’s involvement in excess of 1,000 kilograms of

marijuana, the district court, using the 2004 Sentencing

Guidelines, calculated Liberato’s base offense level to be 32.

Four points were added pursuant to U.S.S.G. § 3B1.1(a) because

Liberato acted as an organizer or leader of the conspiracy, and 2

points were added pursuant to U.S.S.G. § 3C1.1 because Liberato

attempted to obstruct justice. This rendered a total offense level

of 38. Based on an offense level of 38 and a criminal history

category of III, the district court determined that the advisory

Guidelines range for Liberato’s offense was 292 to 365 months. See

United States Sentencing Guidelines Manual Chapter 5, Part A

(2004). Accounting for Liberato’s previous felony drug conviction,

under 21 U.S.C.A. § 841(b)(1)(A) the mandatory minimum and maximum

terms for Liberato’s offense were twenty years to life

imprisonment. Liberato’s 360 months’ sentence thus falls within

both the statutory and Guidelines ranges for his offense.

10

and with multiple aggravated offenses containing the additional

element of a particular threshold quantity of drugs.” Martinez,

277 F.3d at 528 (emphasis added). 

 Liberato’s reliance on Promise is unavailing. Liberato

pleaded guilty to involvement in excess of 1,000 kilograms of

marijuana, the threshold quantity of marijuana that was charged in

the indictment; under § 841(b)(1)(A), this was a guilty plea to an

aggravated marijuana conspiracy distinct from the aggravated

offenses involving cocaine and methamphetamine that are specified

elsewhere in the statute. Moreover, the district court found

beyond a reasonable doubt that Liberato was involved in excess of

the threshold marijuana quantity. Accordingly, Liberato was

sentenced to 360 months’ imprisonment, which was within the

statutory range for his offense.6 See 21 U.S.C.A. § 841(b)(1)(A).
11

Therefore, our holding in Promise is not implicated because

Liberato was not sentenced above the statutory maximum for the

aggravated marijuana offense to which he pleaded guilty. 

III.

In sum, we affirm Liberato’s convictions. 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 in the decisional process.

AFFIRMED