### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 12

- 41257 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. PEDRO OBRAJERO

- SANCHEZ , Defendant

- Appellant

Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:11

- CR

- 78

- 2

Before JOLLY, SMITH, and CLEMENT, Circuit Judges. PER CURIAM: * Pedro Obrajero

- Sanchez pleaded guilty to conspiracy to possess with intent to distribute heroin and was sentenced to 135 months of imprisonment and five years of supervised release. On appeal, he ar gues that (1) the district court erred by applying an adjustment under U.S.S.G. § 3B1.1(a) for his role in the offense , (2) the district court failed to provide sufficient notice that it would apply the § 3B1.1(a) adjustment, ( 3 ) the district court failed to make an

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED March 14, 2014 Lyle W. Cayce Clerk Case: 12-41257 Document: 00512561767 Page: 1 Date Filed: 03/14/2014No. 12

- 41257
explicit finding regarding the reliability and credibility of the witnesses who testified at sentencing, and ( 4 ) the presentation of witnesses at sentencing to increase his sentence violated his due process, equal protection, and Eighth Amendmen t rights. As part of his written plea agreement, Obrajero

- Sanchez waived his right to appeal his conviction and sentence. Although O brajero

- Sanchez did not

c hallenge t he validity of the appeal waiver in his opening brief, we cannot ascertain whether he knowingly and voluntarily waived his right to appeal because the rearraignment transcript containing his guilty plea is not part of the record on appeal. B ecause Obrajero

- Sanchez’s challenge to his sen tence fails, we pretermit consideration of the effect of the appeal waiver. See United States v. Hilterbrand , 538 F. App’x 394, 394 (5th Cir.), cert. denied , 134 S. Ct. 536 (2013); United States v. Story , 439 F.3 d 226, 230

- 31 (5th Cir. 2006). Obrajero

- Sa nchez’s constitutional challenges to the district court’s reliance upon witness testimony at sentencing to support the § 3B1.1(a) adjustment lack merit. See United States v. Whitfield , 590 F.3d 325, 367 (5th Cir. 2009); United States v. Cardenas

- Alvarez , 987 F.2d 1129, 1134 (5th Cir. 1993). His challenges to the procedural reasonableness of his sentence fail to establish any errors. See United States v. Delgado

- Martinez , 564 F.3d 750, 752 (5th Cir. 2009). Even if notice had been required under Federal R ule of Criminal Procedure 32(h), t he district court provided notice to Obrajero

Sanchez that it could apply the § 3B1.1(a) adjustment at sentencing. Moreover, he has failed to show that the district court clearly erred by determining that he was a leader or organizer of a criminal activity that involved five or more participants for purposes of § 3B1.1(a). See United States

v. Alaniz , 726 F.3d 586, 622 (5th Cir. 2013).

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Accordingly, in light of the foregoing, t he Government’s motion to summarily dismiss O brajero

- Sanchez’s appeal is DENIED, the Government’s motion in the alternative for an extension of time in which to file a brief is DENIED as unnecessary , and the judgment of the district court is AFFIRMED.

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