US v. Esteban Zuniga, No. 09-5173 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5173 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ESTEBAN PENA ZUNIGA, a/k/a Tevo, a/k/a Tejon, Defendant Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., Chief District Judge. (1:08-cr-00366-JAB-3) Submitted: November 18, 2010 Before SHEDD and Circuit Judge. AGEE, Circuit Decided: Judges, and November 24, 2010 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Benjamin D. Porter, MORROW ALEXANDER PORTER & WHITLEY, PLLC, Winston-Salem, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, Sandra J. Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Esteban Pena Zuniga pled guilty pursuant to a plea agreement to one count of conspiracy to distribute cocaine hydrochloride, in violation of 21 U.S.C.A. § 846 (West Supp. 2010), and one count of possession of firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (2006), and was sentenced to 230 months in prison. Zuniga s improperly assessed sole argument on appeal one criminal history is that point for he a was 1996 conviction for consuming alcohol under the age of twenty-one because he contends that the Government failed to prove he was the person who received that conviction. Finding no error, we affirm. This court reviews a district court s factual findings underlying its Guidelines range calculation for clear error, and its legal interpretation of the Guidelines de novo. See United States v. Farrior, 535 F.3d 210, 223 (4th Cir. 2008). The district court found by a preponderance of the evidence that Zuniga was the individual who received the North Carolina conviction, and we find no error in this factual finding. See United States v. Manigan, 592 F.3d 621, 632 n.11 (4th Cir. 2010) (reaffirming that a defendant must establish that his presentence investigation report is inaccurate); see also United States v. Love, 134 F.3d 595, 606 (4th Cir. 1998) ( A mere 2 objection to sufficient. inaccurate, presentence the finding in the presentence report is not Without an affirmative showing the information is the court report is free to without adopt more the findings specific of inquiry the or explanation. ) (internal quotation marks, brackets, ellipses and citation omitted). Accordingly, we affirm the district court s judgment. 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 3
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