US v. Santos Fernandez, No. 11-4284 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4284 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SANTOS ANIBAL CABALLERO FERNANDEZ, a/k/a Garra, Defendant Appellant. No. 11-4300 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHNNY ELIAS GONZALEZ, a/k/a Solo, Defendant Appellant. No. 11-4319 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ELVIN PASTOR FERNANDEZ-GRADIS, a/k/a Tigre, Alberto Irias, a/k/a Freddy, a/k/a Flaco, Defendant Appellant. No. 11-4320 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JULIO CESAR ROSALES LOPEZ, a/k/a Stiler, Defendant Appellant. No. 11-4418 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CARLOS ROBERTO FIGUEROA-PINEDA, a/k/a Drogo, Defendant Appellant. No. 11-4458 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. 2 a/k/a Juan JUAN GILBERTO VILLALOBOS, a/k/a Smokey, a/k/a Smoke, Defendant Appellant. Appeals from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:08-cr-00134-RJC-23; 3:08-cr00134-RJC-DSC-18; 3:08-cr-00134-RJC-DSC-6; 3:08-cr-00134-RJCDSC-4; 3:08-cr-00134-RJC-DSC-14; 3:08-cr-00134-RJC-DSC-5) Argued: September 18, 2012 Before TRAXLER, Judges. Chief Judge, Decided: and DIAZ and May 14, 2013 THACKER, Circuit No. 11-4284 affirmed in part, reversed in part, and remanded; No. 11-4300, No. 11-4319, No. 11-4320, No. 11-4418, and No. 114458 affirmed by unpublished per curiam opinion. Chief Judge Traxler wrote a separate opinion concurring in part and dissenting in part. ARGUED: Casper Fredric Marcinak, III, SMITH MOORE LEATHERWOOD, LLP, Greenville, South Carolina; David Quentin Burgess, LAW OFFICE OF DAVID Q. BURGESS, Charlotte, North Carolina; John Clark Fischer, RANDOLPH & FISCHER, Winston-Salem, North Carolina; Roderick Morris Wright, Jr., WRIGHT LAW FIRM OF CHARLOTTE, PLLC, Charlotte, North Carolina, for Appellants. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Harold Bender, LAW OFFICE OF HAROLD BENDER, Southport, North Carolina, for Appellant Gonzales; Richard E. Beam, Jr., HUBBARD & BEAM, Gastonia, North Carolina, for Appellant Lopez. Anne M. Tompkins, United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 3 PER CURIAM: I. La Mara Salvatrucha ( MS-13 ) is a worldwide street gang with Los Angeles origins. refugees fleeing to American the countries. It was formed in the 1980 s by United While States MS-13 from was war-torn originally Central formed for protection of its members, its current objective is to amass wealth, power, and territory. There are six Appellants in this matter, all members of MS-13: (1) Santos Anibal Caballero Fernandez ( Caballero Fernandez ); (2) Johnny Elias Gonzales ( Gonzales ); (3) Elvin Pastor Rosales Fernandez-Gradis Lopez ( Fernandez-Gradis ); ( Lopez ); ( Figueroa-Pineda ); and (5) Carlos (6) Roberto Juan (4) Julio Cesar Figueroa-Pineda Gilberto Villalobos ( Villalobos ). In June, 2008, Appellants, along with 20 other MS-13 were members, tried and convicted of various crimes related to their participation in the gang in the United States. The convictions Appellant s relevant conviction for to this conspiracy appeal to are: commit (1) each racketeering; (2) Appellant Caballero Fernandez s conviction as an accessory after-the-fact to the murder of Ulysses Mayo; and (3) Appellant Figueroa-Pineda s with intent to two convictions distribute and of possession conviction 4 of of marijuana possession of a firearm in furtherance of a drug trafficking crime. 1 Appellant Villalobos also appeals the district court s decision to apply an obstruction of justice enhancement to his sentence. Appellants collectively challenge their convictions on several fronts. insufficient agreement First, to to Appellants establish commit two that argue they predicate the each acts evidence entered of was into an racketeering as required for a conviction of conspiracy to commit racketeering. Second, Appellants argue that the district court failed to adopt adequate safeguards to minimize the prejudice of its use of an anonymous jury. Third, Appellants argue that the district court erred in failing to give a multiple conspiracy instruction to the jury. Finally, Appellants argue that, even if the first three errors are individually harmless, the combined effect of those errors triggers the cumulative error doctrine, compelling reversal. As challenge noted, their Specifically, several Appellants respective Appellant also convictions Caballero Fernandez and individually sentences. challenges his conviction for accessory-after-the-fact to murder, arguing that the evidence does not establish beyond a reasonable doubt that 1 For ease of organization, the facts related to each of these convictions are detailed in the applicable sections below. 5 he knew the victim was dead or dying. challenges his convictions for Appellant Figueroa-Pineda possession with intent to distribute and for possession of a firearm in furtherance of a drug trafficking offense, arguing that the evidence established neither intent to distribute nor use of furtherance of drug trafficking offenses. Villalobos argues the evidence was a weapon in Finally, Appellant insufficient to establish that he obstructed justice. We exception affirm of as Appellant accessory-after-the-fact, to each issue Caballero which we on appeal, reverse. the conviction Fernandez s with for We also remand Appellant Caballero Fernandez s case for resentencing. II. A. Conspiracy to Commit Racketeering 1. Each Appellant was convicted of engaging in a conspiracy to commit racketeering beginning at least in or about 2003. Following these convictions, motion for a judgment of acquittal. each Appellant filed a These motions were denied and this appeal followed. 2. We review acquittal de novo. the denial of a motion for judgment of United States v. Penniegraft, 641 F.3d 566, 6 571 (4th Cir. 2011). Where a defendant challenges the sufficiency of the evidence to support a jury s guilty verdict, we view all evidence and draw all inferences in favor of the government. Id. We will sustain the verdict as long as any rational fact finder would find the essential elements beyond a reasonable doubt. United States v. Higgs, 353 F.3d 281, 313 (4th Cir. 2003). 3. The Influenced conspiracy and Corrupt provision Organizations to Act the Racketeering ( RICO ), 18 U.S.C. § 1962(d), makes it a crime to conspire to violate any one of RICO s three substantive provisions. 2 Here, Appellants were convicted of conspiracy to violate § 1962(c), which contains three elements: (1) the conduct, through a pattern of racketeering. 3 to include any individual, (2) of an enterprise, (3) RICO defines an enterprise partnership, corporation, association, or other legal entity, and any union or group of 2 18 U.S.C. § 1962(d) provides as follows: It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section. 3 18 U.S.C. § 1962(c) provides as follows: It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt. 7 individuals associated in fact although not a legal entity. U.S.C. § 1961(4). A pattern of racketeering 18 requires a defendant to commit at least two predicate acts of racketeering activity. includes, robbery, 18 U.S.C. alia, inter § any extortion, or 1961(5). act Racketeering or dealing threat in a activity involving controlled murder, substance chargeable under state law and punishable by imprisonment for more than one year. 18 U.S.C. § 1961(1). Generally, to be convicted of conspiracy to commit a federal crime, a defendant must commit an furtherance of the object of the conspiracy. There is no such requirement under RICO. overt act in 18 U.S.C. § 371. United States v. Salinas, 522 U.S. 52, 63 (1997) ( The RICO conspiracy provision, then, is even more comprehensive than the general conspiracy offense in § 371. ). A defendant is guilty of conspiracy under RICO if he knowingly and willfully agreed that he or some other member of the racketeering acts. conspiracy would commit at least two United States v. Mouzone, 687 F.3d 207, 218 (4th Cir. 2012) (quoting United States v. Wilson, 605 F.3d 985, 1018-19 (D.C. Cir. 2010)). Naturally, often scarce. direct evidence of such an agreement is United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) ( By its very nature, a conspiracy is clandestine and covert, thereby frequently resulting in little direct evidence 8 of such an agreement. ). As such, proven by circumstantial evidence. conspiracy is typically Id. at 857-58. Appellants argue that the evidence was insufficient to establish argument an agreement lacks to merit. commit There is two predicate ample acts. evidence that This each Appellant was a member of MS-13 and agreed to commit at least two predicate acts. Specifically, Appellant Caballero Fernandez attended a February 29, 2008 MS-13 meeting. Moreover, the evidence indicates that Appellant Caballero Fernandez was a leader of MS13, as the February 29, 2008 meeting he attended was only open to runners or the older people . . . that have more of a say so in the clique. testified at trial, J.A. 1339. 4 those According to an informant who present at the meeting discussed taxing other drug dealers, purchasing guns, and organizing the gang. And, Appellant Caballero Fernandez was photographed displaying gang signs at the February 29, 2008 meeting. Additionally, illegal 2006. alien, illegally Appellant possessed Caballero Fernandez, a on firearm October an 29, As a result, he was convicted of being an illegal alien 4 Citations to the joint appendix ( J.A. ) refer to the joint appendix filed by the parties in this case. 9 in possession of a firearm in violation of 18 U.S.C. § 922(g)(5) in the proceedings below. Appellant Gonzales participated in an attempt to rob a Virginia jewelry store with other MS-13 members. Additionally, he facilitated the purchase of an SKS rifle for a fellow gang member. He was also present at a Charlotte Mall when gang members had an armed confrontation with a rival gang. Appellant Fernandez-Gradis murdered Ulysses Mayo. Appellant Fernandez-Gradis was also present at the February 29, 2008 meeting discussed above. Moreover, he was a leader of MS- 13, as evinced by the fact that he approved a name-change of one of the MS-13 cliques. 5 Appellant Julio Lopez was also a leader of MS-13 in Charlotte. He came to Charlotte at the direction of Manuel Ayala, an El Salvador-based MS-13 leader. He played a large role in several MS-13 meetings and carried a firearm to at least one of them. He was also present at a Mexican restaurant in Greensboro, North Carolina where Alejandro Umana, another MS-13 member, shot and killed two innocent 5 civilians for verbally A clique is a local subpart of MS-13, usually affiliated with a particular geographic area or landmark. As the government s expert testified at trial, each clique is integrated into the global MS-13 operation. 10 disrespecting MS-13. 6 Appellant Lopez left the restaurant with Umana and assisted in his escape. Finally, Appellant Lopez was a middle man in Appellant Villalobos s drug operation. Appellant Figueroa-Pineda attended a meeting where MS13 members discussed killing the witnesses to the Greensboro restaurant murder. He was also present at the aforementioned meetings in February and March of 2008 where he was photographed flashing MS-13 gang signs. Appellant Figueroa-Pineda also sold marijuana from his apartment. Appellant Villalobos was a senior member of MS-13. He controlled nightclubs where he sold drugs and taxed others who did the same. He also supplied guns to other MS-13 members for use when they traveled to meetings. an MS-13 meeting in his garage. In January 2008, he hosted He was also present at the February 2008 meeting discussed above. Appellants also argue that the government s reliance on evidence of attendance at MS-13 meetings to support the RICO convictions is improper as it is evidence of mere association and, therefore, is not sufficient to establish an agreement to commit a predicate act. that the RICO conspiracy Mouzone, 687 F.3d at 218 ( We caution statute 6 does not criminalize mere Umana was tried and convicted along with Appellants. However, his case is not currently before us on appeal. 11 association with an enterprise. ) (quoting Brouwer v. Raffensperger, Hughes & Co., 199 F.3d 961, 965 (7th Cir. 2000)). This argument fails inasmuch as the evidence established far more than mere association. As noted above, the evidence was that at these meetings, members of MS-13 would discuss their plans to commit various acts of racketeering including murder, distribution of illegal drugs, and extortion. evidence established that many Appellants were Moreover, the leaders, as opposed to mere associates, of MS-13. B. Anonymous Jury 1. On a motion from the government, the district court empanelled an anonymous jury. During voir dire, the district court instructed the members of the jury pool that all of the security measures which had been taken (mainly the presence of additional security guards, including snipers, courthouse) were standard in every federal case. at the The district court did not otherwise specifically comment on juror anonymity. The district court did, however, ask some demographic questions of the jury pool (i.e. what type of work they did, approximately where they lived, etc.). Additionally, at the conclusion of voir court dire, the district suggested by defense counsel. 12 asked additional questions 2. Under 28 U.S.C. § 1863(b)(7), a district court is empowered to empanel an anonymous jury whenever the interests of justice so require. 7 Recently, in United States v. Dinkins, 691 F.3d 358 (4th Cir. 2012), we held that an anonymous jury is appropriate where, there is strong reason to conclude that the jury needs protection from interference or harm, or that the integrity of the jury s function will be compromised if the jury does not remain anonymous. is warranted, a Id. at 372. district court must If an anonymous jury adopt safeguards to minimize any resulting prejudice. reasonable Id. 3. Appellants properly concede that an anonymous jury was appropriate here. court adopted district 7 court Thus, the only issue is whether the district adequate failed safeguards. to adopt Appellants adequate contend safeguards by 28 U.S.C. § 1863(b)(7) reads as follows: Among other things, [the plan for random jury selection] shall fix the time when the names drawn from the qualified jury wheel shall be disclosed to parties and to the public. If the plan permits these names to be made public, it may nevertheless permit the chief judge of the district court, or such other district court judge as the plan may provide, to keep these names confidential in any case where the interests of justice so require. 13 the not providing an explicit, non-prejudicial explanation for juror anonymity. In making this argument, Appellants cite cases from our sister circuits in which various explanations anonymity were found to be sufficient. 8 for juror However, none of these cases indicate that an explicit explanation for juror anonymity is a necessary safeguard. Accordingly, they are of limited value here. Moreover, Dinkins indicates that the absence of any specific explanation for juror anonymity minimizes any potential prejudice. The district court in Dinkins did not inform the jury that they were anonymous. questionnaire in Dinkins Likewise, nothing in the juror implied anonymity. In that circumstance, we held, the district court s communications to the venire members, and ultimately the jurors, properly followed the generally accepted practice for minimizing prejudice which is to downplay (not accentuate) the significance of the juror 8 See United States v. Lawson, 535 F.3d 434, 439-42 (6th Cir. 2008) (district judge told the jury anonymity was required by the unusually large number of prospective jurors and defendants and that anonymity would help ensure a fair trial); United States v. Crockett, 979 F.2d 1204, 1216-17 (7th Cir. 1992) (district judge told jury anonymity was designed to avoid any contact between the jurors and the parties to ensure that both sides received a fair and impartial trial); United States v. Thomas, 757 F.2d 1359, 1364-65 (2d Cir. 1985) (district judge told jurors their anonymity was designed to ward off members of the press and to protect their privacy). 14 anonymity procedure. Dinkins, 691 F.3d at 378-79 (quoting United States v. Ochoa-Vasquez, 428 F.3d 1015, 1037 (11th Cir. 2005)). Here, as in Dinkins, downplayed juror anonymity. the district court properly As noted, the court simply advised the jury pool that the security measures which had been taken were standard in every case without specifically mentioning anonymity. J.A. 404. Moreover, aside from juror anonymity, voir dire was conducted in the usual way. Based on this, the government correctly argues that the jury likely did not even realize that anything unusual had occurred. Accordingly, the safeguards adopted by the district court were sufficient. C. Multiple Conspiracy Instruction 1. Appellants allege the district court erred by failing to instruct the jury that the government s evidence related to multiple conspiracies rather than a single conspiracy. instruction is warranted when the proof of Such an multiple conspiracies was likely to have confused the jury into imputing guilt to [the defendant] as a member of one conspiracy because of the illegal activity of members of the other conspiracy. United States v. Roberts, 262 F.3d 286, 294 (4th Cir. 2001). 15 Such an instruction was not requested below. However, on appeal, Appellants allege that the failure to give such an instruction was in error because, in the absence of that instruction, the evidence established that the Appellants were members of several small conspiracies as opposed to one large one. Accordingly, Appellants contend this likely confused the jury and caused them to wrongfully impute guilt from members of one conspiracy to members of another. 2. Because Appellants failed to request instruction below, we review for plain error. Jeffers, 570 F.3d 557, 567 (4th Cir. 2009). such an United States v. Under plain error review, a court may not correct an alleged error unless the following three conditions are met: (1) there was an error, (2) the error is plain, and (3) the error affected a defendant s substantial rights. (1993); see also United States v. Olano, 507 U.S. 725, 732 Fed. R. Crim. P. 52(b). If these three conditions are met, an appellate court may correct the error. Olano, 507 U.S. at 732. While this is a discretionary matter, the Supreme Court has held that an appellate court should only exercise this discretion where the error seriously affect[s] the fairness, integrity, or public reputation of the judicial proceedings. 15 (1985)). Id. (quoting United States v. Young, 470 U.S. 1, The appellant bears the burden of persuasion to 16 show that this occurred. United States v. Nicolaou, 180 F.3d 565, 570 (4th Cir. 1999). 3. In making this argument, Appellants point to the following facts: (1) there were a number of MS-13 cliques in Charlotte and other cities throughout the region; (2) MS-13 members from the various cliques did not know all of the other members because they operated on opposite sides of town; and (3) efforts to integrate the various area cliques had failed. Appellants contrary. ignore significant evidence to the Specifically, MS-13 has a global mission: to amass power and control territory. In furtherance of this mission, MS-13 cliques share weapons and information and members are able to move freely among different cliques. Moreover, as noted above, MS-13 s organizational structure resembles a franchisorfranchisee system. that Appellants This mode of organization strongly indicates were all members of the same conspiracy. Accordingly, the district court did not err, much less plainly err, by not giving a multiple conspiracy instruction to the jury. D. Cumulative Error Appellants argue that, even if the first three alleged errors (i.e. sufficiency of the 17 evidence for the conspiracy convictions, the anonymous jury, and the absence of a multiple conspiracy instruction) are individually harmless, the cumulative effects of these errors compel a new trial based upon the cumulative error doctrine. based on the individually cumulative harmless error errors We will order a new trial doctrine have where the combined impacting a defendant s substantial rights. Martinez, 277 F.3d 517, 532 (4th Cir. two or more effect of United States v. 2002). However, the cumulative error doctrine is inapplicable here, as we find no error in the district court s resolution of any of these three issues. Accordingly, Appellants cumulative error argument is without merit. E. Accessory After the Fact 1. Appellant Caballero accessory-after-the-fact to Fernandez the murder was of convicted Ulysses as Mayo. an On April 12, 2008, Appellants Caballero Fernandez and FernandezGradis were at a party at a neighborhood home. night, Ruben Ibarra arrived to the accompanied by his cousin, Ulysses Mayo. red clothing, the color of a rival Later that party. Ibarra was Both men were wearing gang. This Appellants Fernandez-Gradis and Caballero Fernandez. angered As Ibarra and Mayo were leaving, Appellants Fernandez-Gradis and Caballero 18 Fernandez followed them to their car. An eyewitness testified that it was kind of dark at this time. J.A. 2143. In fact, the record indicates that the murder occurred at approximately 11:00 pm. When Appellants Caballero Fernandez and Fernandez- Gradis arrived at the car, Mayo was sitting in the passenger seat with the window up. the window firearm down. drawn, The window was car s Appellant passenger-side window. the Ibarra was in the driver s seat with was running. Fernandez-Gradis knocked With his on the Mayo tried to roll the window down but stuck. through the window. engine Appellant Fernandez-Gradis then shot Appellant Caballero Fernandez was standing a few feet from Appellant Fernandez-Gradis at this time. witness, standing on the driver s side, testified that A Mayo gasped and moaned when the shots were fired. As soon as the shots were fired, Ibarra drove off. Appellant Caballero Fernandez then got in his car, instructing Appellant Fernandez-Gradis to get in with him. attempted to follow Ibarra and Mayo. The two then Ultimately, Ibarra escaped and Mayo was taken to a local hospital. Mayo was pronounced dead later that night. Appellant Caballero Fernandez remained with Appellant Fernandez-Gradis for the rest of the night. A cooperating witness testified Appellant Caballero Fernandez was distracted and did not speak to anyone. 19 A month later, police officers stopped a Appellant Caballero car with six Fernandez. people Appellant was sitting in the middle of the back seat. inside, including Caballero Fernandez While searching the vehicle, the officers found several handguns, including the gun that Appellant Fernandez-Gradis used to kill Ulysses Mayo. On these facts, Appellant Caballero Fernandez was convicted as an accessory-after-the-fact for the murder of Ulysses Mayo. 9 Following his conviction, Appellant Caballero Fernandez filed a motion for judgment of acquittal notwithstanding the verdict. The district court denied this motion and Appellant Caballero Fernandez appealed. 2. The denial of a motion for judgment of acquittal is reviewed de novo. F.3d at 762. Penniegraft, 641 F.3d at 571; Hickman, 626 When the challenge is based on sufficiency of the evidence, we view the evidence and all reasonable inferences in favor of the government. Penniegraft, 641 F.3d at 571. We will sustain the verdict if any rational fact finder would find the 9 The controlling statute is 18 U.S.C. § 3. This statute reads as follows: Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact. 20 essential elements beyond a reasonable doubt. Higgs, 353 F.3d at 313. 3. On evidence was appeal, Appellant insufficient Caballero to sustain Fernandez his argues the conviction. His argument rests on United States v. McCoy, 721 F.2d 473 (4th Cir. 1983). There, we held that, in order to be convicted as an accessory-after-the-fact to murder, the accessory must have knowledge that [the decedent] was dead or dying at the time of his decision [to provide assistance]. McCoy, 721 F.2d at 475. Appellant Caballero Fernandez argues there is no evidence that he knew that Mayo was dead or dying at any point while he was allegedly assisting Appellant Fernandez-Gradis. Specifically, Appellant Caballero Fernandez argues that, because he drove away quickly after the shots were fired, he never had the chance to observe whether Mayo was dead or dying, or if he had even been shot. Appellant Caballero Fernandez further argues that there is no evidence that he learned of Mayo s death at any point prior to his arrest. The permit a government reasonable argues jury to the infer facts the were sufficient requisite to knowledge. However, we are of the view that, even construing the evidence in a light most favorable to the government, no rational factfinder could have found that Appellant Caballero Fernandez knew 21 that Ibarra was dead or dying during the relevant time period. This is true for several reasons. First, Appellant Caballero Fernandez is correct that, because he sped away quickly after the shots were fired, he did not have time to observe whether Mayo was dead or dying. At most, the fact that Appellant Caballero Fernandez was standing next to the car when shots were fired and may have heard the victim moan permits an inference that he knew that Mayo had been shot. knew It does not follow that Appellant Caballero Fernandez that Mayo Fernandez was properly dead or dying. emphasizes, not As all Appellant gunshots Caballero are fatal. Moreover, the fact that (1) the shooting occurred late at night; (2) the passenger side window was up; and (3) Appellant Caballero Fernandez was standing a few feet away at the time of the shooting further undercuts the government s argument that Appellant Caballero Fernandez knew that Mayo was dead or dying. Second, the government s argument that Appellant Caballero Fernandez was pensive in the wake of the shooting is insufficient to establish knowledge. Appellee s Br. 14. Such behavior could logically have been reflective of the fact that shots were fired. Whatever the reason, the mere fact that Appellant Caballero Fernandez was pensive does not establish, beyond a reasonable doubt, that he knew that Mayo was dead or dying. 22 Finally, the fact that Appellant Caballero Fernandez was a passenger in a car where police found the murder weapon a month after Mayo was killed is not sufficient to support his conviction. There is no indication that Appellant Caballero Fernandez owned the car in which the gun was found nor is there any evidence that the weapon was actually in his possession. Indeed, there were five other people in the car. Even after drawing all reasonable inferences in favor of the government, we find the evidence insufficient to sustain Caballero Fernandez s conviction for accessory after the fact to murder. 10 F. Possession with Intent to Distribute 1. Appellant Figueroa-Pineda was convicted of two counts of possession of marijuana with intent to distribute. 11 facts supporting pursuit of Appellant a the first count fleeing armed robber, police apartment on Figueroa-Pineda s are as follows: while officers January The in went to 22, 2008. 10 Appellant Caballero Fernandez also challenges the reasonableness of his sentence. Because we are reversing his conviction for accessory-after-the-fact and remanding for resentencing, we need not consider his sentencing arguments. 11 Possession with intent to distribute is criminalized by 21 U.S.C. § 841(a)(1), which provides: Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. 23 After discovering that the armed robber had departed, the officers obtained Appellant Figueroa-Pineda s consent to search the apartment. During grams of scale. that marijuana. At trial, search, They police also Officer officers found Chuck uncovered baggies Hastings, and one a of 262 digital the lead federal agents on this case, testified that 262 grams was a dealer amount of marijuana. J.A. 1886. Officer Hastings also testified that he believed Appellant Figueroa-Pineda intended to sell this marijuana. Based on this evidence, the jury found Appellant Figueroa-Pineda guilty of possession with intent to distribute. Appellant Figueroa-Pineda s second conviction after he was arrested in his home on June 24, 2008. incident search, officers found 45 grams of arose In the marijuana and digital scales. The scales were open with marijuana residue on top. this Based on evidence, the jury convicted Appellant Figueroa-Pineda of a second count of possession with intent to distribute. Following these convictions, Appellant Figueroa-Pineda filed a motion for judgment of acquittal as to both convictions. These motions were denied and appealed. 24 Appellant Figueroa-Pineda 2. The denial of a motion for judgment of acquittal is reviewed de novo. Hickman, 626 F.3d at 762. When the challenge is based on sufficiency of the evidence, we view the evidence and all reasonable inferences Penniegraft, 641 F.3d at 571. any rational fact finder beyond a reasonable doubt. in favor of the government. We will sustain the verdict if would find the essential elements Higgs, 353 F.3d at 313. 3. Appellant Figueroa-Pineda argues that the evidence is insufficient to show that he intended to distribute the drugs on either count. In so arguing, he relies exclusively on United States v. Fountain, 993 F.2d 1136 (4th Cir. 1993). In Fountain, the defendant was caught in an area known for drug trafficking with zip-tied baggies and 2.4 grams of marijuana. court found distribute. this Id. to at be sufficient 1139. We evidence reversed, The district of holding intent that to this evidence merely created a suspicion of intent to distribute. Id. Fountain, first count, Fountain however, Fountain possessed does only is not 2.4 distinguishable. apply grams because, of As in to that marijuana. the case, The government s evidence on the first count of conviction showed that Appellant Figueroa-Pineda possessed 262 grams of marijuana. 25 According to Officer Hastings, 262 grams is a dealer amount of marijuana. While there is no bright-line rule as to what constitutes a dealer amount, the significant disparity between the amount here and the amount in Fountain is impossible to ignore. Second, in Fountain, the only evidence proffered to establish intent to distribute was: (a) the fact that the drugs were in baggies and (b) the fact that Fountain was in a drugtrafficking area. Fountain, 993 F.2d at 1137-39. Here, Appellant Figueroa-Pineda was also found with digital scales. We have held that possession of scales is probative of intent to distribute. United States v. Harris, 31 F.3d 153, 157 (4th Cir. 1994). As to the second count, the evidence presents a slightly closer call, as it is perhaps plausible that a heavy marijuana user would purchase 45 grams (less than 3 ounces) for personal consumption. whether the conclusion. jury could However, our task is not to determine have reasonably reached the Rather, the relevant question is whether there is sufficient evidence to support the jury s conclusion. Specifically, Appellant opposite during Figueroa-Pineda s the June apartment, 24, police 2008 search officers digital scales with marijuana residue on top of them. above, this is probative of intent to distribute. 26 There is. of found As noted Harris, 31 F.3d at 157. Moreover, Appellant Figueroa-Pineda marijuana within the at the had past time been six of the caught months. second with 262 search, grams These facts also convicted of provide sufficient support for the jury s finding. G. Firearm Possession 1. Appellant Figueroa-Pineda was of possession of a firearm in furtherance of a drug-trafficking offense. This conviction arose from the initial January 2008 search of Appellant Figueroa-Pineda s apartment mentioned above. During the Pineda whether response, search, police there Appellant caliber revolver. from the drugs. officers were any asked weapons Figueroa-Pineda Appellant in directed the Figueroa- house. them to In a .22 The weapon was hidden under a rug a few feet Based on this, Appellant Figueroa-Pineda was convicted of possession of a firearm in furtherance of a drug trafficking offense under 18 U.S.C. § 924(c). Appellant Figueroa-Pineda challenged this conviction by filing a motion for judgment of acquittal, which was denied. 2. Again, the denial acquittal is reviewed de novo. of a motion for judgment Hickman, 626 F.3d at 762. of When the challenge is based on sufficiency of the evidence, we view 27 the evidence government. and all reasonable inferences Penniegraft, 641 F.3d at 571. in favor of the We will sustain the verdict if any rational fact finder would find the essential facts beyond a reasonable doubt. Higgs, 353 F.3d at 313. 3. On did not appeal, possess Appellant the Figueroa-Pineda weapon trafficking offenses. in argues furtherance of that his he drug- In United States v. Perry, 560 F.3d 246 (4th Cir. 2009), we articulated several non-exclusive factors to aid the determination of whether a firearm was possessed in furtherance of drug trafficking activity: (1) the type of drug activity that was being conducted; (2) the accessibility of the weapon; (3) the type stolen; (5) whether of the weapon; weapon (4) was whether the possessed weapon was illegally; (6) whether the weapon was loaded; (7) the proximity of the drugs or drug profits to the weapon; and (8) the time and circumstances under which the weapon was found. As finding that applied in Appellant this See id. at 254. case, these Figueroa-Pineda factors possessed furtherance of his drug trafficking offenses. support the gun a in Specifically, the gun was located a few feet from a large quantity of marijuana (Factor #7). and, Additionally, the gun was a .22 caliber revolver therefore, (Factors #2 and was #3). easily hidden Finally, 28 in an Detective accessible Hastings place. testified that, because drug dealers commonly get robbed, they often carry weapons to protect themselves. Accordingly, a reasonable jury could Figueroa-Pineda conclude that Appellant possessed the firearm in furtherance of his drug trafficking activities. 12 H. Obstruction of Justice 1. When sentencing Appellant Villalobos, the district court applied an obstruction of justice enhancement as defined in § 3C1.1 ( U.S.S.G. ). of the United States Sentencing Guidelines This section provides: If (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant's offense of conviction and any relevant conduct; or (B) a closely related offense, increase the offense level by 2 levels. U.S.S.G. § 3C1.1 (2012). § 3C1.1 provides that Additionally, Application Note 4(A) to this enhancement should apply where a defendant is threatening, intimidating, or otherwise unlawfully 12 Appellant Figueroa-Pineda argues that the government has failed to exclude the possibility that the weapon belonged to the fleeing armed robber. This argument is of no moment. To be sure, Appellant Figueroa-Pineda s explanation is plausible. However, it does not follow that a reasonable juror must conclude that the gun did not belong to Appellant FigueroaPineda. Viewing the evidence in the light most favorable to the government, this argument is inconsequential. 29 influencing a co-defendant, witness, or indirectly, or attempting to do so[.] juror, directly or U.S.S.G. § 3C1.1 cmt. n. 4(A). At the sentencing hearing, Officer Hastings testified that Appellant Villalobos threatened witness Vela-Garcia during the trial when Appellant Villalobos grabbed his own throat while looking in the direction of Vela-Garcia. his testimony Specifically, trial on Officer interview, Vela-Garcia s Hastings Vela-Garcia Officer Hastings based post-trial testified indicated that that statements. during he a post- believed the gesture made by Appellant Villalobos was designed to make the point to Vela-Garcia that members of the MS-13 gang would kill Vela-Garcia if possible. Additionally, the district court noted that there had been a general atmosphere of intimidation during the trial and that Vela-Garcia had appeared visibly shaken while testifying. As noted above, MS-13 has a history of visiting violence upon former members who cooperate with government officials. district several court of the observed that, defendants consistent glared at with witnesses this The practice, during trial, ultimately prompting the district court to admonish defendants to cease such behavior. Based on all of this evidence, the district court found that the obstruction of justice enhancement was warranted. 30 2. In order to apply the obstruction of justice enhancement, a sentencing court must find, by a preponderance of the evidence, that the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice . . . . United States v. Kiulin, 360 F.3d 456, 460 (4th Cir. 2004) (quoting United States v. Puckett, 61 F.3d 1092, 1095 (4th Cir. 1995)). We review factual findings made by a district court in applying the Sentencing Guidelines, including those facts that serve as a basis for an obstruction of justice enhancement, for clear error. Id. 3. Appellant erred Villalobos in argues concluding Specifically, Appellant that that he Villalobos the district threatened argues that court clearly Vela Garcia. the district court improperly relied on the statements of Detective Hastings because doing so deprived Appellant Villalobos opportunity to confront his accuser, Vela-Garcia. of the Additionally, Appellant Villalobos argues that the district court should not have relied on its own observations of the general atmosphere at 31 trial as such atmosphere Appellant Villalobos. As the was not entirely attributable to We disagree. 13 government points out, during sentencing a district court may properly consider any relevant information before it, including uncorroborated hearsay, provided that the information has sufficient indicia of reliability to support its accuracy. Wilkinson, Powell, 650 F.3d at 392 (quoting United States v. 590 F.3d 259, 269 (4th Cir. 2010)). Here, the district court relied on the statement of a cooperating witness as relayed by a police officer. Additionally, the district court relied on its own first-hand impressions of the atmosphere at trial, including while testifying. its impression of Vela-Garcia s demeanor Taken together, these facts corroborate Vela- Garcia s testimony that he was threatened. Accordingly, the district court did not clearly err in concluding that Appellant Villalobos threatened Vela Garcia and, therefore, the district court did not err in applying the enhancement here. 13 Appellant Villalobos also argues that reliance on VelaGarcia s post-trial interview violates the Due Process Clause and the Confrontation Clause because Vela-Garcia was not subject to cross examination during that interview. However, these claims fail because a criminal defendant does not enjoy a constitutional right to cross examination at sentencing. See U.S. v. Powell, 650 F.3d 388, 393 (4th Cir.), cert denied, 132 S.Ct. 350 (2011). 32 III. For the forgoing reasons, the judgment of the district court is AFFIRMED in part, REVERSED in part, and REMANDED. Specifically, the conspiracy to commit racketeering conviction is AFFIRMED as Fernandez s REVERSED to each conviction and resentencing. his case Appellant. as an Caballero accessory-after-the-fact REMANDED Appellant Appellant to the district Figueroa-Pineda s is court for convictions for possession of marijuana with intent to distribute (two counts) and for possession of a firearm trafficking offense are AFFIRMED. application of an obstruction in furtherance of a drug Finally, the district court s of justice enhancement as to Appellant Villalobos is AFFIRMED. No. 11-4284 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED; No. 11-4300, No. 11-4319, No. 11-4320, No. 11-4418, and No. 11-4458 AFFIRMED 33 TRAXLER, Chief Judge, concurring in part and dissenting in part: Viewing the evidence in the light most favorable to the government, and drawing all inferences in its favor, as we must, see United States v. Penniegraft, 641 F.3d 566, 571 (4th Cir. 2011), I would affirm Caballero Fernandez s conviction for accessory-after-the-fact to murder. Fernandez-Gradis, with Caballero Fernandez close at his side, stood next to the passenger door of Ruben Ibarra s vehicle -- close enough for Fernandez-Gradis to knock on the passenger-side window with gun in hand. He then shot twice at point blank range at the passenger, shattering the glass from the window and hitting the victim once in the chest. In my view, this evidence would permit a jury to reasonably infer that both Fernandez-Gradis and Caballero Fernandez were close enough to see that the passenger had been shot in the chest. gunshot wound to the chest stems the logical and From a reasonable conclusion that the victim was dying. Accordingly, I respectfully dissent from the reversal of Caballero Fernandez s conviction for accessory-after-the-fact to the murder of Ulysses Mayo. I concur in the remainder of the majority opinion. 34

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