US v. Ricardo Mendoza, No. 09-5011 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5011 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICARDO SANCHEZ MENDOZA, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:09-cr-00091-D-1) Submitted: October 14, 2010 Decided: November 10, 2010 Before DAVIS and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed and remanded by unpublished per curiam opinion. John Keating Wiles, CHESHIRE, PARKER, SCHNEIDER, BRYAN & VITALE, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ricardo Sanchez Mendoza pled guilty to one count of conspiracy to violation of possess 21 with U.S.C. § intent 846 to distribute (2006), and cocaine, in counts of three distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) (2006). He pled not guilty to possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A) (2006), and was found guilty by a jury. The district court sentenced Mendoza to 144 months in prison. On appeal, denying Mendoza his alleges motion to that the suppress district evidence court of erred in out-of-court photographic identifications and that he should have received a downward adjustment responsibility. in his sentence for acceptance of For the following reasons, we affirm Mendoza s conviction and sentence. We remand solely for the purpose of correcting a clerical error in the judgment. See Fed. R. Crim. P. 36. Mendoza first argues that the district court erred in denying his motion to suppress evidence of his out-of-court photographic identifications by Rasheed Hakeem White. We review de novo the district court s legal conclusion as to whether the identifications violated the Due Process Clause and its factual findings for clear error. United States v. Saunders, 501 F.3d 384, 389 (4th Cir. 2007). 2 The Due Process Clause protects against identification procedures that are unnecessarily suggestive and conducive to mistaken identifications. Neil v. Biggers, 409 U.S. 188, 198 (1972). engage A court must in a two-step inquiry determining whether identification testimony is admissible. in See United States v. Wilkerson, 84 F.3d 692, 695 (4th Cir. 1996). First, the procedure defendant was must establish impermissibly that the suggestive. identification See Manson v. Brathwaite, 432 U.S. 98, 108-10 (1977); Satcher v. Pruett, 126 F.3d 561, 566 (4th Cir. 1997). the court must determine If he meets this burden, then whether the identification was nevertheless reliable under the totality of the circumstances. Manson, 432 U.S. at 114. assume move the On appeal, this court is permitted to suggestiveness directly to the of an second, identification reliability procedure step. Holdren and v. Legursky, 16 F.3d 57, 61 (4th Cir. 1994). In determining reliability, the court considers the following factors: (1) the opportunity of the witness to view the criminal at the time of the crime ; (2) the witness degree of attention ; description of (3) the the accuracy criminal ; (4) of the the witness level of prior certainty demonstrated by the witness at the identification; and (5) the length of time between the crime and the identification. 409 U.S. at 199-200; see Saunders, 501 F.3d at 391. 3 Neil, Because we agree with the district court that White s identification of Mendoza was reliable under the Neil factors, we do not address the question of the alleged suggestiveness of the photographic identifications. White made unequivocal, positive identifications of Mendoza after meeting with Mendoza twice during drug transactions where a maximum of four people were present. White s description of Mendoza, made soon after one of the transactions and prior to viewing the photograph, was largely accurate. Under these circumstances, we hold that White s identification was reliable, and that this reliability outweighs any corrupting identification itself. * effect of the Manson, 432 U.S. at 114. suggestive Accordingly, we conclude that that the district court did not err in denying Mendoza s motion to suppress. Next, Mendoza asserts that he should have received a downward adjustment for acceptance of responsibility. a defendant generally responsibility Manual ( USSG ) adjustment for is not adjustment § 3E1.1 eligible under (2008) obstruction of U.S. when justice * for the acceptance Sentencing he receives under However, USSG of Guidelines an upward § 3C1.1. Our confidence in the integrity of White s identification of Mendoza is bolstered by the fact that White was arrested near Mendoza s house and identified the location of the house, and that cell phone records indicated contact between White and Mendoza. 4 United States v. Hudson, 272 F.3d 260, 263 (4th Cir. 2001). The defendant has the burden of showing that his circumstances are extraordinary. of justice demonstrate Id. Mendoza does not challenge the obstruction adjustment. We extraordinary hold that circumstances Mendoza warranting failed to application of an acceptance of responsibility adjustment. Accordingly, sentence. we affirm Mendoza s conviction and We note, however, that the judgment entered by the district court reflects that Mendoza was convicted by a jury on all counts. In fact, Mendoza pleaded guilty to Counts One, Two, Four and Five, and was found guilty by a jury after pleading not guilty to Count Three. this clerical error. oral argument adequately We remand for the purpose of correcting See Fed. R. Crim. P. 36. because presented in the the facts and materials legal before We dispense with contentions the court are and argument would not aid the decisional process. AFFIRMED AND REMANDED 5
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