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 argues 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 5TH CIR. 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 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 14, 2014

Lyle W. Cayce

Clerk

 

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No. 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 

Amendment rights.

As part of his written plea agreement, Obrajero-Sanchez waived his right 

to appeal his conviction and sentence. Although Obrajero-Sanchez did not 

challenge the 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. Because Obrajero-Sanchez’s challenge to his sentence 

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.3d 226, 230-31 (5th Cir. 2006).

Obrajero-Sanchez’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 Rule of 

Criminal Procedure 32(h), the district court provided notice to ObrajeroSanchez 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, the Government’s motion to 

summarily dismiss Obrajero-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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