US v. Jose Bahena, No. 13-4014 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4014 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSE MANUEL BAHENA, Defendant - Appellant. No. 13-4016 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSE DE JESUS VILLA BELTRAN, Defendant - Appellant. Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:12-cr-00214-CCE-3; 1:12-cr-00214-CCE-2) Submitted: September 24, 2013 Decided: September 26, 2013 Before NIEMEYER and Senior Circuit Judge. THACKER, Circuit Judges, and HAMILTON, Affirmed by unpublished per curiam opinion. Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN, Winston-Salem, North Carolina; Walter C. Holton, Jr., HOLTON LAW FIRM, PLLC, Winston-Salem, North Carolina, for Appellants. Ripley Rand, United States Attorney, Terry M. Meinecke, Assistant United States Attorney, Winston-Salem, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Jose Manuel Bahena and Jose De Jesus Villa Beltran entered guilty pleas to conspiracy to distribute marijuana, 21 U.S.C. § 846 (2006), and each received a sentence of five years imprisonment. Both appellants challenge the district court s determination that they did not qualify for a sentence below the statutory mandatory minimum Manual § 5C1.2 (2012). court clearly enhancement § 2D1.1(b)(1). U.S. Sentencing Guidelines Bahena also contends that the district erred for under in his case possession applying a a of by two-level firearm under USSG We affirm. Bahena and Beltran were arrested in January 2012 when law enforcement trafficking conducted Esteban house at officers a surveillance Valentin and house received in running a Reidsville, there. Rojas-Rivera red information North Beltran were light in and stopped a about drug Carolina, and co-conspirator after vehicle $290,447 in cash and caused a drug dog to alert. leaving that the contained Bahena was at the house and consented to a search, during which 474 kilograms of marijuana plastic bags. were located in a bedroom in sealed four-pound Also found were $2000 in cash, drug-trafficking records, Bahena s and Beltran s wallets (each containing $500), Bahena s passport, and a firearm under a cushion on the couch in the living room. Rojas-Rivera stated that he had hired Bahena 3 and Beltran to help him distribute marijuana. officers he had handled the gun, but was Bahena told the not involved with marijuana distribution, and simply had been hired to stay in the house and keep watch. Beltran said he told Rojas-Rivera he needed money and had been brought to the house that day, saw marijuana in the house, and volunteered to go with Rojas-Rivera when he left to transport cash to an unknown destination. Bahena maintains that the government failed to prove that he possessed the firearm. § 2D1.1(b)(1) applies if a However, the enhancement under firearm is present during a drug offense, unless the defendant can show that it was clearly improbable activities. that the weapon was connected with his drug United States v. Manigan, 592 F.3d 621, 630 n.8 (4th Cir. 2010) (quoting USSG § 2D1.1 cmt. n.11). The district court did not clearly err when it determined that Bahena failed to make this showing. After making statements to the officers at the time of arrest, neither Bahena nor Beltran information to the government. provided any further Beltran s attorney confirmed at sentencing that he had chosen not to be interviewed further by the government. valve provision To be eligible for relief under the safety of § 5C1.2, a defendant must meet the five criteria set out in 18 U.S.C. § 3553(f) (2006), the last of which is that he have, by the time of sentencing, truthfully 4 provided to the government all information and evidence he has about the offense and other offenses that were part of the same course of conduct or common scheme or plan. The defendant bears the burden of proving that he has met the prerequisites for relief under disclosure. the safety valve provision, including truthful United States v. Aidoo, 670 F.3d 600, 605 (4th Cir.), cert. denied, 133 S. Ct. 627 (2012); see also United States v. Ivester, 75 F.3d 182, 184-85 (4th Cir. 1996) (defendant must demonstrate that he has fully disclosed even if government does defendant showed not seek that they information had met from this him). Neither prerequisite. In addition, the district court did not err in deciding that Bahena was excluded on the ground connection with the offense. that he possessed argument adequately because presented in the the firearm in USSG § 5C1.2(a)(2). We therefore affirm the sentences. oral a facts and materials We dispense with legal contentions are before this and court argument would not aid the decisional process. AFFIRMED 5
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