Filed: Jan. 15, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4192 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THADDEUS VIDAL PERALTA, a/k/a Ted, a/k/a Ted the Fed, Defendant - Appellant. No. 14-4193 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AARON ANTHONY LUMPKIN, Defendant - Appellant. Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. Mark S. Davis, District Judge. (2:12-cr-00192-MSD-TEM-1; 2:12-cr-00192-MSD-TEM-2) Submitt
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4192 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THADDEUS VIDAL PERALTA, a/k/a Ted, a/k/a Ted the Fed, Defendant - Appellant. No. 14-4193 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AARON ANTHONY LUMPKIN, Defendant - Appellant. Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. Mark S. Davis, District Judge. (2:12-cr-00192-MSD-TEM-1; 2:12-cr-00192-MSD-TEM-2) Submitte..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4192
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THADDEUS VIDAL PERALTA, a/k/a Ted, a/k/a Ted the Fed,
Defendant - Appellant.
No. 14-4193
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AARON ANTHONY LUMPKIN,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Mark S. Davis, District
Judge. (2:12-cr-00192-MSD-TEM-1; 2:12-cr-00192-MSD-TEM-2)
Submitted: November 25, 2014 Decided: January 15, 2015
Before DIAZ and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Nicholas D. Renninger, KOZAK, DAVIS & RENNINGER, PC, Portsmouth,
Virginia; Melinda R. Glaubke, SLIPOW ROBUSTO & KELLAM, PC,
Virginia Beach, Virginia, for Appellants. Dana J. Boente,
United States Attorney, Christopher J. Van Horne, Special
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In this consolidated appeal, Thaddeus Vidal Peralta
and Aaron Anthony Lumpkin appeal the district court’s judgments
of conviction following a jury trial. Peralta and Lumpkin were
convicted of conspiracy to distribute and possess with intent to
distribute methamphetamine or a mixture and substance containing
a detectable amount of methamphetamine (“the conspiracy count”).
21 U.S.C. §§ 841(a)(1), 846 (2012). The jury found that Peralta
conspired to distribute at least fifty grams of methamphetamine
or at least 500 grams of a mixture and substance containing
methamphetamine, while Lumpkin conspired to distribute at least
five grams of methamphetamine or at least fifty grams of a
mixture and substance containing methamphetamine. The jury also
convicted both Peralta and Lumpkin of possession with intent to
distribute less than fifty grams of a mixture and substance
containing methamphetamine (“the possession count”). 21 U.S.C.
§ 841(a)(1), (b)(1)(C) (2012). Peralta received a sentence of
262 months’ imprisonment for the conspiracy count and a
concurrent 240-month term for the possession count; Lumpkin was
sentenced to concurrent 180-months terms of imprisonment.
Peralta appeals his convictions and 262-month
sentence, arguing that the convictions were not supported by
sufficient evidence, the district court admitted improper
evidence, and the district court erred at sentencing in applying
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two Guidelines enhancements and miscalculating the drug quantity
attributable to him. Lumpkin appeals his sentence, arguing that
the district court erred in calculating the drug quantity
attributable to him and applying two Guidelines enhancements.
We affirm.
I.
Peralta first challenges the sufficiency of the
evidence supporting his convictions. We review de novo the
denial of a motion for a judgment of acquittal. Fed. R. Crim.
P. 29; United States v. Hickman, 626 F.3d 756, 762 (4th Cir.
2010). The jury verdict must be sustained when “there is
substantial evidence in the record, when viewed in the light
most favorable to the government, to support the conviction.”
United States v. Jaensch,
665 F.3d 83, 93 (4th Cir. 2011)
(internal quotation marks 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. (alteration and internal
quotation marks omitted).
In order to establish that Peralta was guilty of the
conspiracy count, the Government was required to demonstrate (1)
an agreement between two or more people to distribute and
possess with intent to distribute ice or methamphetamine, (2)
Peralta’s knowledge of the conspiracy, and (3) Peralta’s knowing
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and voluntary participation in the conspiracy. United States v.
Hackley, 662 F.3d 671, 678 (4th Cir. 2011). To support
Peralta’s conviction for the possession count, the Government
was required to prove “(1) possession of the narcotic
controlled substance, (2) knowledge of the possession, and (3)
intent to distribute the narcotic controlled substance.” United
States v. Randall,
171 F.3d 195, 209 (4th Cir. 1999).
We conclude that substantial evidence supports
Peralta’s convictions. Multiple coconspirators testified that
Peralta entered into agreements with several individuals to
transport methamphetamine from Florida to Virginia between 2005
and 2012. These witnesses further indicated that Peralta
transported several ounces of methamphetamine into Virginia
during his numerous trips and distributed the drug upon his
arrival. Finally, witnesses testified that Lumpkin shipped
methamphetamine from Florida to his mother’s house in Virginia,
where Peralta reclaimed it and proceeded to distribute the drug
in Virginia.
Peralta argues that the witnesses against him were
inherently untrustworthy, as each had a significant incentive to
testify against him. However, “the jury, not the reviewing
court, weighs the credibility of the evidence and resolves any
conflicts in the evidence presented.” United States v. Beidler,
110 F.3d 1064, 1067 (4th Cir. 1997) (alteration and internal
5
quotation marks omitted). Moreover, the jury was informed of
these potential biases and each witness was cross-examined on
his or her motivations for testifying.
Next, Peralta argues that the district court admitted
irrelevant and prejudicial evidence, including a firearm,
obtained during a 2008 traffic stop. We review a district
court’s evidentiary rulings for abuse of discretion. See United
States v. Benkahla, 530 F.3d 300, 309 (4th Cir. 2008). A
district court abuses its discretion in admitting evidence
“arbitrarily or irrationally.”
Id. (internal quotation marks
omitted). Relevant evidence may be excluded if “its probative
value is substantially outweighed by a danger of . . . unfair
prejudice, confusing the issues, [or] misleading the jury.”
Fed. R. Evid. 403.
We discern no abuse of discretion here. “Evidence of
gun possession and ownership is logically relevant in many drug
conspiracies.” United States v. Ward, 171 F.3d 188, 195 (4th
Cir. 1999). The challenged evidence, as described by various
witnesses, showed that Peralta and his coconspirators were
traveling between Florida and Virginia during the relevant time
frame. The evidence uncovered during the traffic stop was
relevant to show that Peralta was traveling to distribute drugs.
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II.
Peralta and Lumpkin raise several challenges to their
sentences. Both argue that the district court miscalculated the
drug quantities attributable to them and that the district court
erroneously applied a three-level leadership enhancement.
Peralta further argues that the district court erroneously
applied a two-level dangerous weapon enhancement, while Lumpkin
asserts that the district court improperly applied an
enhancement for obstruction of justice.
We review criminal sentences for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). In so doing, we “must first
ensure that the district court committed no significant
procedural error,” such as failing to calculate or improperly
calculating the advisory Sentencing Guidelines range or
selecting a sentence based on clearly erroneous facts.
Id.
Peralta and Lumpkin first challenge the drug
quantities attributed to them for Guidelines purposes. “We
review the district court’s calculation of the quantity of drugs
attributable to a defendant for sentencing purposes for clear
error.” United States v. Slade,
631 F.3d 185, 188 (4th Cir.
2011) (internal quotation marks omitted). Clear error occurs if
we are “left with the definite and firm conviction that a
mistake has been committed.” United States v. Jeffers,
570 F.3d
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557, 570 (4th Cir. 2009) (internal quotation marks omitted). In
calculating drug amounts, the district court “may consider [any]
relevant information . . . , provided that the information has
sufficient indicia of reliability to support its probable
accuracy.” United States v. Crawford,
734 F.3d 339, 342 (4th
Cir. 2013), cert. denied,
134 S. Ct. 1528 (2014); see also U.S.
Sentencing Guidelines Manual (“USSG”) § 6A1.3(a). This Court
will afford the district court “broad discretion in determining
what information to credit in making its calculations.” United
States v. Stewart,
256 F.3d 231, 253 n.18 (4th Cir. 2001).
We discern no clear error in the district court’s drug
quantity calculations. Peralta and Lumpkin both assert that the
testimony relied upon by the court is unreliable. In reviewing
the district court’s factual determinations, however, we must
give “due regard to the opportunity of the district court to
judge the credibility of the witnesses.” United States v.
Uwaeme, 975 F.2d 1016, 1018 (4th Cir. 1992) (citing 18 U.S.C.
§ 3742(e) (1988)) (internal quotation marks omitted). The
district court, having presided over the joint trial, observed
the testimony of each witness. When ruling on Peralta’s and
Lumpkin’s challenges to the drug quantities, the court carefully
reviewed each contested paragraph, comparing the weight
attributed in the presentence reports to the testimony at trial,
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and sustained the objections as to several quantities where the
amounts differed.
Peralta and Lumpkin next challenge the district
court’s application of a three-level leadership enhancement.
The district court’s imposition of a role adjustment is a
factual determination reviewed for clear error. United States
v. Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009). A three-level
enhancement under USSG § 3B1.1(b) is warranted if “the defendant
was a manager or supervisor (but not an organizer or leader) and
the criminal activity involved five or more participants.” The
enhancement is appropriate where the evidence demonstrates that
the defendant “controlled the activities of other participants”
or “exercised management responsibility.” United States v.
Slade,
631 F.3d 185, 190 (4th Cir. 2011) (quoting United States
v. Bartley,
230 F.3d 667, 673-74 (4th Cir. 2000)). In
determining whether a § 3B1.1(b) enhancement is warranted, a
court should consider:
(1) the exercise of decision making authority, (2) the
nature of participation in the commission of the
offense, (3) the recruitment of accomplices, (4) the
claimed right to a larger share of the fruits of the
crime, (5) the degree of participation in planning or
organizing the offense, (6) the nature and scope of
the illegal activity, and (7) the degree of control
and authority exercised over others.
Kellam, 568 F.3d at 148 (quoting USSG § 3B1.1, cmt. n.4).
“Leadership over only one other participant is sufficient as
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long as there is some control exercised.” United States v.
Rashwan, 328 F.3d 160, 166 (4th Cir. 2003).
We conclude that the district court did not clearly
err in applying the leadership enhancement. The evidence at
trial established that Peralta distributed methamphetamine to
coconspirators for redistribution; facilitated and arranged drug
transactions between various coconspirators; and directed
coconspirators to transfer money via prepaid cards. Likewise,
Lumpkin exercised control over another coconspirator, directing
this coconspirator to travel to Virginia to distribute the drugs
and to transfer the proceeds of the sales via prepaid cards.
Next, Peralta argues that the district court erred in
applying a two-level enhancement for possession of a dangerous
weapon. Section 2D1.1(b)(1) of the Guidelines directs a
district court to apply a two-level enhancement “[i]f a
dangerous weapon (including a firearm) was possessed.” The
enhancement is proper when the weapon at issue “was possessed in
connection with drug activity that was part of the same course
of conduct or common scheme as the offense of conviction.”
United States v. Manigan, 592 F.3d 621, 628-29 (4th Cir. 2010)
(internal quotation marks omitted). The defendant bears the
burden to show that a connection between his possession of a
firearm and his narcotics offense is “clearly improbable.”
United States v. Harris,
128 F.3d 850, 852-53 (4th Cir. 1997).
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We conclude that the enhancement was properly applied.
Testimony at trial established that the traffic stop during
which the gun was found occurred while Peralta was returning to
Florida from distributing methamphetamine in Virginia. Peralta
was the driver and his mother the registered owner of the
vehicle. Although Peralta speculates that one of the two
passengers could have placed the weapon under the hood without
his knowledge, he has failed to offer any evidence to refute the
information contained in the presentence report.
Finally, Lumpkin argues that the district court erred
in applying the USSG § 3C1.1 obstruction-of-justice enhancement
based on his testimony at trial. We review the imposition of
this enhancement for clear error. United States v. Hughes, 401
F.3d 540, 560 (4th Cir. 2005). The commission of perjury —-
willfully giving false testimony concerning a material matter —-
is a proper ground on which to base the enhancement. United
States v. Dunnigan,
507 U.S. 87, 95-96 (1993). “There are three
elements necessary to impose a two-level enhancement for
obstruction of justice based on the defendant's perjurious
testimony: the sentencing court must find that the defendant
‘(1) gave false testimony; (2) concerning a material matter; (3)
with willful intent to deceive. . . .’” United States v. Perez,
661 F.3d 189, 192 (4th Cir. 2011) (quoting United States v.
Jones,
308 F.3d 425, 428 n.2 (4th Cir. 2002)).
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We discern no clear error in the district court’s
application of the enhancement. At trial, Lumpkin denied any
involvement in transportation and distribution of
methamphetamine from Florida to Virginia; this testimony was
directly contradicted by other witnesses at trial. The district
court’s conclusion that Lumpkin’s testimony concerned a material
matter and was made with the willful intent to deceive was not
clearly erroneous.
III.
Accordingly, we affirm the district court’s judgments.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the material before this
court and argument will not aid the decisional process.
AFFIRMED
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