UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit. 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

(a)(1)

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

v. California,

(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 two-

level 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-of-

discretion standard. Gall v. United States,

(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

(a) (2006) factors, or

failing to adequately explain the sentence. United States v.

Carter,

(4th Cir. 2009). We then consider the

substantive reasonableness of the sentence imposed, taking into

account the totality of the circumstances. Gall,

. On appeal, we presume that a sentence within a properly

2 calculated guideline range is reasonable. United States v.

Allen,

(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,

(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,

(1993). Even when this burden is met, we

3 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.”

(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

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