UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4648

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SALVADOR VARGAS TORRES, a/k/a Chava,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Robert J. Conrad, 

Jr., District Judge. (3:11-cr-00003-RJC-19)

Submitted: April 25, 2014 Decided: May 12, 2014

Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

John J. Cacheris, LAW OFFICE OF JOHN J. CACHERIS, P.C., 

Charlotte, North Carolina, for Appellant. William A. Brafford, 

Assistant United States Attorney, Charlotte, North Carolina; Amy 

Elizabeth Ray, Assistant United States Attorney, Asheville, 

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Salvador Vargas Torres appeals his conviction and 

sentence for conspiracy to distribute and to possess with intent 

to distribute at least five kilograms of cocaine, in violation 

of 21 U.S.C. § 846. Torres pled guilty pursuant to a written 

plea agreement and was sentenced to 170 months’ imprisonment and 

five years of supervised release. On appeal, counsel has filed 

a brief pursuant to Anders v. California, 386 U.S. 738 (1967), 

asserting that, in light of Torres’ waiver of his right to 

appeal, there are no meritorious issues for appeal, but 

questioning whether the Government wrongfully declined to file a 

motion for a downward departure based on substantial assistance 

and whether the district court erred in applying a four-level 

sentencing enhancement for Torres’ role in the offense. Torres 

has not filed a supplemental pro se brief, despite notice of his 

right to do so. We affirm Torres’ conviction and sentence.

Although counsel is correct that Torres’ plea 

agreement contained an appellate waiver, the Government has not 

sought to enforce the waiver in this case. Accordingly, we 

conduct a full review of the record as required by Anders. See

United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) 

(“If an Anders brief is filed, the government is free to file a 

responsive brief raising the waiver issue (if applicable) or do 
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nothing, allowing this court to perform the required Anders

review.”). 

Counsel first questions the Government’s failure to 

move for a downward departure pursuant to U.S. Sentencing 

Guidelines Manual (USSG) § 5K1.1, despite the assistance Torres 

provided. When, as in this case, the plea agreement accords the 

Government sole discretion whether to file a substantial 

assistance motion, the defendant generally may not complain 

about the failure to file such a motion. See United States v. 

Wallace, 22 F.3d 84, 87 (4th Cir. 1994). The record identifies 

no exception to this rule that would apply in this case. 

Therefore, we find no error.

Counsel next questions whether the district court 

erred in applying a four-level enhancement for Torres’ role in 

the offense. The Sentencing Guidelines provide that a fourlevel enhancement applies “[i]f the defendant was an organizer 

or leader of a criminal activity that involved five or more 

participants or was otherwise extensive.” USSG § 3B1.1(a). We 

review for clear error the district court’s factual finding that 

a defendant is an organizer or leader in the offense. United 

States v. Cameron, 573 F.3d 179, 184 (4th Cir. 2009). Reversal 

for clear error is warranted only when we are left with the 

“definite and firm conviction that a mistake has been 
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committed.” United States v. Harvey, 532 F.3d 326, 336-37 (4th 

Cir. 2008) (internal quotation marks omitted). 

Here, the testimony presented at sentencing 

establishes that the criminal activity involved at least five 

participants and that Torres exercised a leadership role by 

distributing drugs through several coconspirators and 

supervising some of their drug sales. Thus, the district court 

did not clearly err in finding Torres to be an organizer or 

leader in the conspiracy and in applying the four-level 

enhancement of USSG § 3B1.1(a). 

In accordance with the requirements of Anders, we have 

examined the entire record and have found no meritorious issues. 

We therefore affirm the district court’s judgment. This Court 

requires that counsel inform Torres, in writing, of the right to 

petition the Supreme Court of the United States for further 

review. If Torres 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 Torres. 

We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials
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before this Court and argument would not aid the decisional 

process.

AFFIRMED