US v. Maria Carbajal-Nieto, No. 08-4832 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4832 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARIA CARBAJAL-NIETO, Defendant - Appellant. No. 08-5139 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ESEQUIEL HERRERA-NIETO, Defendant - Appellant. Appeals from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:06-cr-00037-RLV-DCK-9; 5:06-cr-00037-RLV-DCK-2) Submitted: July 20, 2010 Decided: Before MOTZ, KING, and DUNCAN, Circuit Judges. August 6, 2010 Affirmed by unpublished per curiam opinion. Chiege O. Kalu Okwara, Charlotte, North Carolina; Richard A. Culler, CULLER & CULLER, P.A., Charlotte, North Carolina, for Appellants. Edward R. Ryan, United States Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Esequiel Herrera-Nieto and Maria Carbajal-Nieto, who are husband and wife, were tried together on various drug and firearm charges. Esequiel was convicted of conspiracy to possess with intent to distribute cocaine and methamphetamine. He was also convicted of five substantive possession with intent to distribute charges and use or carry of a firearm during and in relation to a drug trafficking crime. conspiracy and one substantive Maria was convicted of offense. Both appeal their convictions, and Maria also appeals from her 235-month sentence. We affirm. I. Esequiel contends that the district denying his motion for judgment of acquittal. the evidence was insufficient to support his court erred by He asserted that conviction for using or carrying a firearm during and in relation to a drug trafficking crime or possession of a firearm in furtherance of a drug trafficking crime. R. Crim. P. 29 motion We review de novo the denial of a Fed. for judgment of acquittal. United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). When a Rule 29 motion was based on a claim of insufficient evidence, the jury s verdict must be sustained if there is substantial evidence, taking the view most favorable to the Government, to 3 support it. United States v. Abu Ali, 528 F.3d 210, 244 (4th Cir. 2008), cert. denied, 129 S. Ct. 1312 (2009). ha[s] defined reasonable substantial finder of fact evidence could as This court evidence accept as that adequate a and sufficient to support a conclusion of a defendant s guilt beyond Alerre, 430 F.3d at 693. a reasonable doubt. We must consider circumstantial as well as direct evidence, and allow the government the benefit of all reasonable inferences from established. the the proven to those credibility different, decides which Murphy, 35 challenging burden. to be This court may not weigh the evidence or of the witnesses. United Allen, 491 F.3d 178, 185 (4th Cir. 2007). supports sought United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). review facts reasonable interpretation F.3d the 143, 148 sufficiency to (4th of States If the evidence interpretations, believe. Cir. the v. the United 1994). evidence jury States A faces v. defendant a heavy United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). To convict Esequiel of violating 18 U.S.C. § 924(c) (2006), the [G]overnment [had to] prove that [Esequiel] used or carried a firearm during and in relation to a drug trafficking crime or possessed trafficking crime. a firearm in furtherance of a drug United States v. Stephens, 482 F.3d 669, 4 673 (4th Cir. 2007). It is sufficient if the defendant s possession of the firearm was constructive, meaning that he exercised, or had the power to exercise, dominion and control over the firearm. United States v. Wilson, 484 F.3d 267, 282 (4th Cir. 2007). Here, carried a the firearm jury during found and specifically relation in that the to Esequiel conspiracy charge, as well as one substantive charge (arising from a search of Esequiel s home). The jury further found that Esequiel possessed a firearm in furtherance of the conspiracy charge and two substantive charges (one arising from the search of his home and the other involving the stop of his vehicle). Thus, the jury found that Esequiel violated § 924(c) in five different ways, any one of which would be sufficient to support his conviction. We easily find that the evidence was sufficient to support Esequiel s conviction. witness testified that regularly during deal went bad. drug As Esequiel transactions to began after the conspiracy, carrying one a one firearm particular drug Another witness testified that, on the date of the relevant substantive offenses, he saw Esequiel at his home with a gun in his hand. This testimony alone, if believed, was sufficient to support the jury s verdict that Esequiel possessed and carried a firearm for protection during the drug conspiracy, 5 as well as during the transaction at his home. 1 Accordingly, we affirm Esequiel s conviction. II. Maria calculated the Specifically, contends drug she that amount asserts the for that district which she she was court was improperly responsible. wrongfully attributed with amounts for which the conspiracy was responsible before she arrived in the United States on October 15, 2005. 2 district court s calculation of the We review the quantity of drugs attributable to a defendant for sentencing purposes for clear error. United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). Maria s report clearly claim is without calculated the support. drug Her quantity presentence based upon controlled buys between late 2005 and August of 2006 and the seizure of contraband at her home. Accordingly, Maria has failed to show clear error by the district court. 1 In addition, we hold that the evidence also supported the jury s verdict in all other respects concerning Esequiel s firearm conviction. 2 Maria also asserts that, prior to her arrival in the United States, she was too young to be held responsible for the conspiracy s drug amounts. 6 III. Maria next asserts that the district court did not provide a sufficient explanation for rejecting her request for a lower sentence evaluating the and for choosing sentencing court s the imposed explanation sentence. of a In selected sentence, we have consistently held that, while a district court must consider the statutory factors and explain its sentence, it need not explicitly reference 18 U.S.C. § 3553(a) (2006) or discuss every factor on the record, particularly when the court imposes a sentence within a properly calculated Guidelines range. United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). But, at the same time, the district court must make an individualized assessment based on the facts presented. Gall v. United States, 552 U.S. 38, 50 (2007). Moreover, the district court must state the individualized reasons that justify a sentence, even when sentencing a defendant within the Guidelines range. Rita v. United States, 551 U.S. 338, 356-57 (2007). The reasons articulated by the district court for a given sentence need not be couched in the precise language of § 3553(a), so long as the reasons can be matched to a factor appropriate for consideration . . . and [are] clearly tied [to the defendant s] particular situation. United States v. Moulden, 478 F.3d 652, 658 (4th Cir. 2007). Because Maria argued for a sentence below the advisory Guidelines range in district court, the adequacy of 7 the court s explanation is reviewed for harmless error. See United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010). We conclude that the district court s explanation in this case was adequate. Maria argued for a below-Guidelines sentence based upon the fact that she became involved in the conspiracy through her husband and she did not know about his dealings prior to her involvement. She also noted that she did not have a criminal history and that she was very young. In imposing a sentence at the bottom of the Guidelines range, the district court noted the serious and pernicious drug dealing enterprise of which the defendant was fully aware. The court rejected Maria s youth as a factor to support a variance, noting that many discussed drug the dealers are § 3553(a) the factors same and age. found The that court they then either supported a Guidelines sentence or were neutral, at best, but that none provided supported a variance. individualized reasoning Because for the the district court within-Guidelines sentence imposed, we reject Maria s claim. IV. Finally, Maria contends that the district court should have sua sponte severed her trial from that of Esequiel. Specifically, she asserts that there was evidence regarding the conspiracy that pre-dated her involvement and that no limiting 8 instructions were given. The failure to order severance sua sponte is reviewed for plain error. F.3d 363, 369-70 (3d Cir. 2001). United States v. Hart, 273 In general, the decision as to whether to sever a trial is left to the sound discretion of the district court. Zafiro v. United States, 506 U.S. 534, 541 (1993). Absent special circumstances, together should be tried together. F.3d 878, 883 (4th Cir. 1994). defendants indicted United States v. McManus, 23 To succeed on appeal, a defendant claiming that the district court erred by failing to sua sponte Maria and severance Id. prejudice. order Here, the evidence at trial established that Esequiel conducted must drug make a colorable transactions many witnesses testified against both of them. the evidence may have been relevant to the claim together, of and While some of charges against Esequiel only, the evidence against Maria was overwhelming and she does not argue otherwise. Thus, she is unable to show the prejudice necessary to succeed on this claim. V. Based on the foregoing, we affirm Maria and Esequiel s convictions and Maria s sentence. We dispense with oral argument because the facts and legal contentions are adequately 9 presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 10
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