US v. Alfred Buensalida, No. 12-4788 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4788 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALFRED BUENSALIDA, a/k/a JJ, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:11cr-00061-RWT-1) Submitted: July 29, 2013 Decided: August 7, 2013 Before KING, GREGORY, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas J. Saunders, LAW OFFICE OF THOMAS J. SAUNDERS, Baltimore, Maryland, for Appellant. Adam Kenneth Ake, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Alfred Buensalida appeals his conviction and the 180month sentence imposed after he was found guilty by jury of conspiracy to distribute and possess with intent to distribute fifty or more grams of U.S.C. § 846 (2006). accordance with methamphetamine, in violation of 21 Counsel for Buensalida filed a brief in Anders v. California, 386 U.S. 738 (1967), certifying that there are no meritorious issues for appeal but questioning: (1) whether the district court erred in denying Buensalida s motions to dismiss for lack of venue and to transfer venue; (2) whether the district court erred in failing to suppress wiretap evidence; (3) whether the district court erred in failing to suppress Buensalida s confession; and (4) whether the evidence was sufficient to support Buensalida s conviction. Buensalida has filed a pro se supplemental brief, repeating the issues raised by counsel and raising the following additional issues: (1) whether trial counsel provided ineffective assistance; (2) whether the district court erred in attributing over 500 grams of methamphetamine to him at sentencing; (3) whether the district court erred in applying a two-level sentencing enhancement for possessing a firearm; (4) whether the district court erred in applying statutory penalties of a minimum of ten years and a maximum of life in prison; (5) whether the district court erred 2 in imposing a disparate sentence; and (6) whether instructed the jury. brief. the district court improperly The Government has elected not to file a For the reasons that follow, we affirm. I. We first address the issue of venue. We review the district court s denial of a motion to dismiss for lack of venue de novo. cert. United States v. Engle, 676 F.3d 405, 412 (4th Cir.), denied, 133 S. Ct. 179 (2012). The Constitution guarantees a criminal defendant the right to be tried in the district where his offense was committed. U.S. Const., art. III, § 2; amend. VI; United States v. Rodriguez-Moreno, 526 U.S. 275, 276-82 (1999). A conspiracy may be prosecuted in any district where some act in furtherance of the conspiracy was committed. United States v. Gilliam, 975 F.2d 1050, 1057 (4th Cir. 1992). Whether a particular defendant was ever physically present in the district may be irrelevant to the issue of venue. See United States v. Al-Talib, 55 F.3d 923, 928 (4th Cir. 1995). If the defendant objects to venue, the matter should be submitted to the jury if there is any genuine issue of material fact. Engle, 676 F.3d at 413. We review the district court s denial of a motion to transfer venue for abuse of discretion. United States v. Heaps, 39 F.3d 479, 482-83 (4th Cir. 1994), abrogated on other grounds by United States v. Cabrales, 524 U.S. 1 (1998). 3 In deciding whether to grant a motion to transfer venue, the district court should consider the factors enumerated by the Supreme Court in Platt v. Minn. Mining & Mfg. Co., 376 U.S. 240 (1964). We conclude that the evidence fully supported venue in Maryland. Although Buensalida resided in California throughout the conspiracy, various acts in furtherance of the conspiracy occurred in Maryland, methamphetamine to including Maryland, his Buensalida s shipment coconspirator s shipment of of cash from Maryland, and the distribution of methamphetamine in Maryland. Moreover, Buensalida cannot claim that he was unaware of the acts that occurred in Maryland. Finally, out of an abundance of caution, the district court submitted the venue issue to the nonetheless. jury, and the jury Engle, 676 F.3d at 413. convicted Buensalida Accordingly, the district court properly denied Buensalida s motion to dismiss for lack of venue. As for the motion to transfer venue, the district court properly considered the Platt factors before denying the motion. Heaps, 39 F.3d at 483. Accordingly, the district court did not abuse its discretion. II. We next address the district court s denial of Buensalida s motion to suppress wiretap evidence. We review the factual ruling findings underlying a district 4 court s on a motion to suppress for clear error and the legal conclusions de novo. United States v. Kelly, 592 F.3d 586, 589 (4th Cir. 2010). Wiretaps should not be routinely employed, but rather reserved for investigative crime. instances techniques where would necessary be inadequate great. to normal expose the 18 U.S.C. § 2518(3)(c) (2006); United States v. Smith, 31 F.3d 1294, 1297 (4th Cir. 1994). burden because of showing Id. necessity, The Government bears the however, this burden is not The Government s showing should be tested in a practical and commonsense fashion that does not hamper unduly the investigative powers of law enforcement agents. (internal quotation marks and citations omitted). Id. We review the district court s finding of necessity for abuse of discretion. United States v. Wilson, 484 F.3d 267, 281 (4th Cir. 2007). The district court did not abuse its discretion in finding necessity. The Government established necessity through the wiretap application, which included a seventy-four page affidavit, having thoroughly difficulty investigative surveillance infiltrating techniques could explaining be the would easily be how investigators conspiracy, problematic detected and were that normal because video executing search warrants would be premature, and that wiretaps would likely be effective telephones because in members furtherance of the of conspiracy illicit 5 used narcotics the target activities. Considering the application, the discretion. therefore detailed showing finding Smith, properly 31 of necessity F.3d denied contained at was 1297. in not The Buensalida s the an wiretap abuse district motion to of court suppress wiretap evidence. III. We next address whether the district court properly admitted Buensalida s confession. The district court denied Buensalida s motion to suppress his confession upon finding that Buensalida voluntarily waived his Miranda rights. Miranda warnings are required when a suspect is interrogated while in custody. a Miranda v. Arizona, 384 U.S. 436 (1966). statement taken suppression. Id. in violation of Miranda Accordingly, is subject to However, a suspect may waive his Miranda rights and voluntarily submit to interrogation, in which case his custodial statements will be admissible. Hicks, 748 F.2d 854, 859 (4th Cir. United States v. 1984). In determining voluntariness, the critical question is whether the suspect s will has been overborne or his determination critically impaired. 835 F.2d 1067, 1071-72 (4th capacity for self- United States v. Pelton, Cir. 1987). Nonetheless, government agents may validly make some representations to a defendant or may discuss cooperation 6 without rendering the resulting confession involuntary. United States v. Shears, 762 F.2d 397, 401 (4th Cir. 1985). The district court properly denied Buensalida s motion to suppress the confession. The evidence showed that Buensalida was read his rights and signed a written waiver. claims his waiver and confession were Buensalida involuntary because officers told him if he did not cooperate he would face harsher penalties. However, statement, that involuntary. Id. even would assuming not the render officers made Buensalida s such a confession Because the evidence supports a finding that Buensalida voluntarily waived his Miranda rights, the district court properly admitted his confession. Hicks, 748 F.2d at 859. IV. We supporting novo the next review Buensalida s district 367 (4th Cir. 2010). sufficiency conspiracy court s judgment of acquittal. the of conviction. denial of a Rule the We 29 evidence review motion de for United States v. Green, 599 F.3d 360, We review the sufficiency of the evidence supporting a conviction by determining whether, in the light most favorable to the Government, there is actual substantial evidence in the record to support the conviction. Id. 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. 7 Id. (internal quotation marks and citation omitted). Reversal on grounds of insufficient evidence is appropriate only in cases where the Government s failure to present substantial evidence is clear. Id. Buensalida was convicted of conspiracy to distribute and possess obtain a with intent conviction, to the distribute Government methamphetamine. was required to To prove: (1) the existence of an agreement to distribute and possess with intent to distribute methamphetamine (that is, a conspiracy); (2) the defendant s knowledge of the conspiracy; and (3) the defendant s knowing conspiracy. member of Id. a and voluntary participation in the A defendant may be a knowing and voluntary conspiracy without knowing its participating in its full range of activities. full scope or United States v. Burgos, 94 F.3d 849, 858-59 (4th Cir. 1996). Buensalida contends the Government has failed to prove his participation in a conspiracy in Maryland as opposed to a conspiracy in California. However, the Government was required to prove venue as an element of the offense. not See Engle, 676 F.3d at 412 (venue is not a substantive element of a crime and accordingly need only be proved by a preponderance of the evidence). existence Maryland of and Regardless, a conspiracy Buensalida s the to evidence distribute knowing 8 and clearly showed methamphetamine voluntary the in participation therein. Green, 599 F.3d at 367. substantial evidence We therefore conclude that supports Buensalida s conspiracy conviction. V. We next address assistance of counsel. deficient Buensalida s claim of ineffective Buensalida raises various allegations of performance, but fails to allege prejudice. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Because the record does not conclusively show ineffective assistance, Buensalida s claim is not cognizable on direct appeal. United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). VI. We next review Buensalida s challenge to the district court s findings regarding drug quantity. prove the drug quantity attributable The Government must to the defendant by a preponderance of the evidence. United States v. Carter, 300 F.3d 415, 425 (4th Cir. 2002). The district court may rely on drug-related facts included in the presentence investigation report unless the defendant shows that information is inaccurate or unreliable. quantity are Id. A district court s findings regarding drug generally factual in nature, reviewed by this court for clear error. Sentencing determining a judges Guidelines may range 9 therefore are facts relevant to Id. find by and a preponderance of the evidence, so long as that Guidelines sentence is treated as advisory and falls within the statutory maximum authorized by the jury s verdict. United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008). The district court properly found by a preponderance of the evidence that Buensalida was responsible for over 500 grams of pure methamphetamine. 425. in Carter, 300 F.3d at The court s finding is supported by information contained the presentence investigating investigation agents, coconspirators; and methamphetamine. a by forensic the report; chemist, physical testimony and evidence from Buensalida s of the seized We therefore conclude that the district court properly calculated Buensalida s drug quantity. * VII. We next consider Buensalida s challenge to the application of a two-level sentencing enhancement for possessing a dangerous Guidelines dangerous weapon. provides weapon, Section for such a as 2D1.1(b)(1) two-level a firearm, of the enhancement was Sentencing where possessed. a The district court decides whether to apply the enhancement by a * We are not persuaded by Buensalida s contention that the district court s finding that he was responsible for over 500 grams of pure methamphetamine conflicted with the jury s determination that he was responsible for fifty grams or more of pure methamphetamine. The jury s and the district court s findings are completely consistent. 10 preponderance of the evidence, and its findings ordinarily will be reversed only if clearly erroneous. 915 F.2d 899, 914 (4th Cir. 1990). United States v. Apple, However, because Buensalida failed to raise the issue below, he will be entitled to relief only upon a showing of plain error. United States v. Walker, 112 F.3d 163, 165 (4th Cir. 1997). We conclude that the district court properly applied the firearm enhancement. Ample evidence supported the enhancement, including evidence that Buensalida conducted some of the firearm methamphetamine was found at transactions his home, and from his home, that cellphone that a pictures established his possession of firearms during the time of the conspiracy. VIII. We next address Buensalida s challenge regarding his statutory penalties. Buensalida challenges the increase in his statutory penalties from five to forty years, to ten years to life in prison, based on Apprendi v. New Jersey, 530 U.S. 466 (2000). Buensalida s statutory penalties were increased based on a drug quantity of fifty or more grams of methamphetamine. 21 U.S.C. § 841(b)(1)(A)(viii). that increase a defendant s Under Apprendi, drug quantities statutory maximum sentence are considered elements of the offense, and must be charged in the indictment and found by the jury beyond a reasonable doubt. 11 The Supreme Court has recently extended this rule to the context of statutory minimum sentences. Ct. 2151, 2156 (2013). charged in reasonable the Here, the drug quantity was properly indictment doubt. Alleyne v. United States, 133 S. and Accordingly, found the by the jury district beyond court a properly applied the increased statutory penalties. IX. We next consider Buensalida s claim of an unwarranted sentencing disparity. Buensalida alleges he played the role of a mere middle-man, that he has little prior criminal history compared to his coconspirators, and that he unfairly received a fifteen-year sentence years or less. while his coconspirators received six However, a disparity between the sentences of a defendant who pleads guilty and one who proceeds to trial is not an unwarranted disparity. 168, 179 (4th Cir. See United States v. Offill, 666 F.3d 2011) (holding disparate sentence of defendant who proceeded to trial reasonable), cert. denied, 132 S. Ct. 1936 (2012). Construed liberally, Buensalida s claim challenges the reasonableness of his sentence. We review a sentence reasonableness, applying an abuse of discretion standard. v. United States, 552 U.S. 38, 46 (2007). significant court procedural improperly error including calculated the 12 for Gall We first review for whether Guidelines the range, district failed to consider the § 3553(a) factors, or failed to adequately explain its sentence and reasonable will only we then Gall, 552 U.S. at 51. considering extent of the any if find consider a sentence substantive procedurally reasonableness. Substantive reasonableness is determined totality variance we of the from circumstances, the Guidelines including range. the Id. A sentence within or below a properly calculated Guidelines range is presumed substantively reasonable. United States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012). Our review of the record reveals that the district court properly considered the various § 3553(a) factors including the seriousness of Buensalida s offense and the need to avoid unwarranted sentencing disparities prior to sentencing Buensalida. considering generous Discerning no totality of the downward other the variance, we procedural circumstances conclude that error, and including a Buensalida s sentence is both procedurally and substantively reasonable. X. Finally, district court quantity. instructing we consider improperly Buensalida s instructed the claim jury that the regarding drug Buensalida contends the district court erred in only the jury to determine the amount of pure methamphetamine and not also the amount of a mixture containing methamphetamine or, simply, 13 methamphetamine for which Buensalida was responsible. In reviewing an improper jury instruction claim, the key issue is whether, taken as a whole, the instruction fairly states the controlling law. United States v. Cobb, 905 F.2d 784, 788-89 (4th Cir. 1990). The defendant must raise his objection to a jury instruction in the district court in order to fully preserve the issue for appeal; if he does not, the issue is subject only to plain error review. Fed. R. Crim. P. 52(b); 731-32 (1993). United States v. Olano, 507 U.S. 725, Furthermore, under the invited error doctrine, a defendant will not be permitted to challenge on appeal a jury instruction he requested. United States v. Collins, 372 F.3d 629, 635 (4th Cir. 2004). We discern no error in the contested jury instruction. First, Buensalida failed to raise this objection below. he in fact proposed the contested corresponding special verdict form. jury Second, instruction and Finally, Buensalida fails to appreciate that the Government presented evidence not only of the amount of methamphetamine he distributed, but also of its purity, thus allowing the jury to determine the amount of pure methamphetamine for which he was responsible. instruction would therefore have Accordingly, Buensalida s claim fails. 14 been The additional wholly superfluous. XI. In accordance with Anders, we have reviewed the entire record in this case and found no meritorious issues for appeal. We therefore affirm Buensalida s requires motion that the district for appointment counsel inform court s of judgment. counsel. Buensalida, in We This writing, deny court of the right to petition the Supreme Court of the United States for further review. If Buensalida requests that a petition be filed but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. was served on Counsel s motion must state that a copy thereof Buensalida. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 15

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