US v. Oscar Hernandez, No. 10-4258 (4th Cir. 2011)

Annotate this Case

Download PDF

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4258 UNITED STATES OF AMERICA, Plaintiff Appellee, v. OSCAR HERNANDEZ, Defendant - Appellant. No. 10-4276 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JAIME PUENTE-VAZQUEZ, Defendant - Appellant. Appeals from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:08-cr-00027-RLV-DCK-4; 5:08-cr-00027-RLV-DCK-7) Submitted: July 8, 2011 Decided: Before KING, DAVIS, and KEENAN, Circuit Judges. July 22, 2011 Affirmed by unpublished per curiam opinion. Matthew Collin Joseph, Charlotte, North Carolina; Kenneth D. Snow, COBLE & SNOW, LLP, Charlotte, North Carolina, for Appellants. Anne M. Tompkins, United States Attorney, Richard Lee Edwards, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Oscar Hernandez was convicted by a jury of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006), intent to distribute cocaine, attempted 21 U.S.C. possession with §§ 841(a)(1), 846, possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (2006), and possession of a firearm by an § 922(g)(5). illegal The district months in prison. same jury alien, in court violation sentenced of 18 Hernandez U.S.C. to 228 Jaime Puente-Vazquez was convicted by the cocaine, of conspiracy to possess with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 846, and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a). 151 months appeal. in The district court sentenced Puente-Vazquez to prison. Hernandez and Puente-Vazquez timely We affirm. Both Hernandez and Puente-Vazquez challenge the sufficiency of the evidence on each count on which they were convicted. Additionally, Puente-Vazquez challenges his sentence, claiming that the district court improperly applied an enhancement for obstruction of justice pursuant to U.S. Sentencing Guidelines Manual ( USSG ) § 3C1.1 (2009). This court reviews a district court s decision to deny a Fed. R. Crim. P. 29 motion for a judgment of acquittal de 3 novo. United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). A defendant challenging the sufficiency of the evidence faces a heavy burden. United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). The verdict of a jury must be sustained if, viewing the evidence in the light most favorable to the prosecution, the verdict evidence. Smith, 451 is F.3d supported at 216 by substantial (citations omitted). Substantial evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant s guilt beyond a reasonable doubt. Id. (internal quotation marks and citation omitted). Furthermore, [t]he jury, not the reviewing court, weighs the credibility of the evidence and resolves any conflicts in the evidence quotation presented. marks and Beidler, citation 110 F.3d omitted). at 1067 (internal Reversal for insufficient evidence is reserved for the rare case where the prosecution s failure is clear. Id. (internal quotation marks and citation omitted). Because this case involved a conspiracy charge under 21 U.S.C. § 846, the Government was required to prove: (1) an agreement between two or more persons to engage in conduct that violated a federal drug law; (2) the defendant s knowledge of the conspiracy; and (3) the defendant s knowing and voluntary participation in the conspiracy. 4 United States v. Strickland, 245 F.3d 368, 384-85 (4th Cir. 2001). Since a conspiracy is by its nature clandestine and covert, it is generally proved by circumstantial evidence. United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc). conspiracy members may of include the a Evidence tending to prove a defendant s conspiracy; relationship moreover, the with other existence of a conspiracy may be inferred from a development and collocation of circumstances. Id. at 858. to conspiracy support a Circumstantial evidence sufficient conviction need not exclude every reasonable hypothesis of innocence, provided the summation of the evidence permits a conclusion of guilt beyond a reasonable Id. (citation omitted). doubt. It discrete, States v. important is unnecessary identifiable Banks, 10 the organizational F.3d consideration that is 1044, 1054 whether conspiracy structure. (4th the Cir. actor have a United 1993). An demonstrated a substantial level of commitment to the conspiracy, for example by engaging in a consistent series of smaller transactions that furthered its ultimate object of supplying the consumer demand of the market. brackets Id. (citation and internal quotation marks and omitted). Our review of the record leads us to conclude that the district court did not err in finding there was sufficient evidence for the jury to convict both Hernandez and Puente-Vazquez on this count. 5 Next, Puente-Vazquez contends that there was insufficient evidence to convict him of possession with intent to distribute at least five kilograms of cocaine. To prove possession with the intent to distribute cocaine, the Government is required to prove that a defendant: (1) knowingly; (2) possessed cocaine; (3) with the intent to distribute it. United States v. Collins, 412 F.3d 515, 519 (4th Cir. 2005). Possession may be actual or constructive. Rusher, 966 F.2d 868, 878 (4th Cir. 1992). United States v. Intent to distribute may be proved by a number of factors, including the amount of cash seized, seizure of a consumption. Cir. the 1990). possession quantity of of drug drugs paraphernalia, too large for and the personal United States v. Fisher, 912 F.2d 728, 730-31 (4th After our thorough review of the record, we conclude that the district court did not err in denying PuenteVazquez s motion for a judgment of acquittal as to the possession with intent to distribute charge. Hernandez claims that the evidence was insufficient to sustain his conviction for attempted possession with intent to distribute cocaine. To sustain a conviction for attempted possession with intent to distribute, there must be sufficient evidence demonstrating: substantial strongly step toward corroborative (1) culpable the commission of that 6 intent; of intent. the and (2) a crime that is States v. United Sutton, 961 F.2d 476, 478 (4th Cir. 1992) (internal quotation marks omitted). [A] substantial step is more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime. quotation marks omitted). conduct represents surrounding a This Court has held that [w]hether substantial factual Id. (internal step circumstances depends and, therefore, determinations are necessarily fact specific. Neal, 78 F.3d 901, 906 (4th Cir. 1996). on the such United States v. Again, our review of the record leads us to conclude that the district court did not err in denying Hernandez s motion for a judgment of acquittal on this count. Hernandez evidence convict on next challenges the sufficiency firearms charges against both of the Hernandez of violating required to prove that § 924(c), Hernandez: (1) the of the him. To Government committed a was drug trafficking crime; and (2) possessed a firearm in furtherance of that crime. that the conspiracy attempted 18 U.S.C. § 924(c)(1)(A) (2006). evidence to was possess possession sufficient with with first element is satisfied. intent intent to to to Because we find convict Hernandez of distribute cocaine and cocaine, the distribute Moreover, our review of the record reveals that the district court was correct in concluding there was sufficient evidence to satisfy the second element. 7 It is unlawful for any person who is an illegal alien to possess in ammunition. or 18 affecting U.S.C. commerce, § 922(g)(5). any firearm Because or Hernandez stipulated that he was an illegal alien and that the pistol found under interstate the Hernandez mattress commerce, possessed show the the that at his only house had contested firearm. Hernandez The travelled issue is in whether Government not possessed physically was the required to weapons. See United States v. Blue, 957 F.2d 106, 107 (4th Cir. 1992) (noting that, in a § 922(g) conviction, the government need not produce evidence of actual possession, as it may proceed on a constructive possession theory demonstrating that the defendant showed ownership, dominion, or control over the firearm itself). the evidence possessed the After reviewing the record, we conclude that was sufficient firearm. to establish Accordingly, we that conclude Hernandez that the district court did not err in denying Hernandez s motion for a judgment of acquittal on either of the firearms counts. Lastly, Puente-Vazquez challenges the district court s application of the obstruction of justice enhancement pursuant to USSG § 3C1.1. increased two defendant willfully A defendant s base offense level is to be levels for obstruction obstructed or of impeded, justice or if attempted the to obstruct or impede, the administration of justice with respect 8 to the investigation, prosecution, or sentencing of the instant offense of conviction, and . . . the obstructive conduct related to (i) the defendant s offense of conviction. USSG § 3C1.1. The supports commission enhancement. of perjury by a defendant USSG § 3C1.1 cmt. n.4(b). the The Supreme Court has defined perjury for purposes of § 3C1.1 in the following manner: [a] witness testifying under oath or affirmation and giving false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty Dunnigan, 507 U.S. 87, 94 (1993). memory. United States v. We conclude that the district court did not err in applying this enhancement. Accordingly, we affirm the judgment of the district court. legal We dispense with oral argument because the facts and contentions are adequately presented in the materials before the court and argument would not aid in the decisional process. AFFIRMED 9

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.