Filed: Dec. 23, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4007 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. PEDRO OSCAR DIEGUEZ, a/k/a The Cuban, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:13-cr-00020-FDW-DSC-1) Submitted: December 18, 2015 Decided: December 23, 2015 Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per cu
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4007 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. PEDRO OSCAR DIEGUEZ, a/k/a The Cuban, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:13-cr-00020-FDW-DSC-1) Submitted: December 18, 2015 Decided: December 23, 2015 Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per cur..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4007
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PEDRO OSCAR DIEGUEZ, a/k/a The Cuban,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:13-cr-00020-FDW-DSC-1)
Submitted: December 18, 2015 Decided: December 23, 2015
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Peter C. Anderson, BEVERIDGE & DIAMOND, PC, Charlotte, North
Carolina, for Appellant. Jill Westmoreland Rose, United States
Attorney, Anthony J. Enright, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pedro Oscar Dieguez was convicted after a jury trial of
conspiracy to distribute and to possess with intent to
distribute at least five kilograms of cocaine and conspiracy to
launder funds. He was sentenced to 400 months in prison. He
appeals his convictions and sentence on numerous grounds. We
affirm.
I.
Dieguez first contends that the jury was confused by the
unrelated and unreliable testimony regarding the various drug
transactions involved in his drug conspiracy. Dieguez asserts
that the Government failed to paint a picture regarding the
scope of the conspiracy or the interplay of the coconspirators.
However, in evaluating the sufficiency of the evidence, we do
not review the credibility of the witnesses, and we assume that
the fact finder resolved all contradictions in the testimony in
favor of the Government. United States v. Sun, 278 F.3d 302,
313 (4th Cir. 2002). Moreover, it is not necessary to prove the
identifiable organizational structure of a conspiracy. In fact,
contemporary drug conspiracies are often “only a loosely-knit
association of members linked only by their mutual interest in
sustaining the overall enterprise of catering to the ultimate
demands of a particular drug consumption market.” United
2
States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993).
Accordingly, Dieguez’s claim is without merit.
II.
Dieguez next contends that the district court erred in
failing to sua sponte instruct the jury regarding single versus
multiple conspiracies. Dieguez asserts that the Government
built their proof of conspiracy upon a flawed assumption that
all of the cocaine that was ever dealt by the cooperating
witnesses was automatically part of one large single conspiracy.
“In a conspiracy prosecution, a defendant may establish the
existence of a material variance by showing that the indictment
alleged a single conspiracy but that the government’s proof at
trial established the existence of multiple, separate
conspiracies.” United States v. Kennedy, 32 F.3d 876, 883 (4th
Cir. 1994). Because Dieguez failed to raise the issue of
variance before the trial court, however, and the jury was not
instructed that they could find separate conspiracies, review is
limited to determining whether the trial court committed plain
error in failing to sua sponte instruct the jury that they could
find multiple conspiracies rather than the single one charged in
the indictment. See United States v. Young,
470 U.S. 1, 15
(1985). “A multiple conspiracy instruction is not required
unless the proof at trial demonstrates that appellants were
involved only in ‘separate conspiracies unrelated to the overall
3
conspiracy charged in the indictment.’” Kennedy, 32 F.3d at 884
(quoting United States v. Castaneda-Cantu,
20 F.3d 1325, 1333
(5th Cir. 1994)).
A review of the evidence presented by the parties reveals
that the proof at trial did not demonstrate separate
conspiracies. Therefore, there was no variance, let alone plain
error, in failing to instruct on single versus multiple
conspiracies. The evidence presents a picture of one conspiracy
in which Maximiliano Aguilar-Rodriguez and Juan Diego
Aguilar-Preciado assisted Dieguez in obtaining large quantities
of cocaine from Mexico and distributing it to others for even
further distribution to users. Although Dieguez did not
participate in all the transactions, there is no requirement
that every member must participate in every transaction to find
a single conspiracy. See United States v. Leavis, 853 F.2d 215,
218 (4th Cir. 1988). The only testimony Dieguez refers to as
supporting his contention is Aguilar-Preciado’s testimony that
Dieguez wanted to work only with him and his uncle because other
drug dealers had not paid him. However, the fact that Dieguez
wanted to work with limited people in his inner circle did not
negate the fact that his suppliers and customers all worked
together over an extended period of time to sustain the needs of
the drug-buying public. Therefore, the district court’s failure
4
to give a multiple conspiracy instruction was not plainly
erroneous.
III.
Dieguez next contends that the district court improperly
permitted the Government to question Aguilar-Preciado and
Aguilar-Rodriguez regarding who was involved in the
“conspiracy.” However, both of these witnesses had pled guilty
to conspiracy, and the jury was instructed that the Government
still had to prove that Dieguez was involved in the same
conspiracy. There was no abuse of discretion in permitting
these witnesses to state the charge to which they pled guilty
and with whom they conspired.
IV.
Dieguez next contends that the district court erred in its
calculation of the drug quantity attributable to him for
sentencing purposes. We review the district court’s drug
quantity finding underlying its calculation of the base offense
level for clear error. United States v. Kellam, 568 F.3d 125,
147 (4th Cir. 2009). This deferential standard of review
requires reversal only if this court, upon review of the record
as a whole, “is left with the definite and firm conviction that
a mistake has been committed.” Easley v. Cromartie,
532 U.S.
234, 242 (2001) (internal quotation marks omitted).
5
Dieguez argues first that the Government’s witnesses at
trial, whose testimony formed the basis for the attributable
drug amount, lacked the necessary reliability based upon their
biases, the inconsistencies in their testimony, their vague
estimates, the alleged fact that some of the drug transactions
were not related to the conspiracy at issue, and the lack of
corroboration. However, the district court was entitled to
credit the testimony of Dieguez’s coconspirators, even if the
testimony was inconsistent or otherwise questionable. See
United States v. Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997)
(explaining that the uncorroborated testimony of a single
cooperating witness may be sufficient to uphold a conviction);
see also United States v. Sainz-Preciado,
566 F.3d 708, 713-14
(7th Cir. 2009) (holding that district court can credit
testimony that is uncorroborated and comes from an admitted liar
or paid Government informant). Moreover, Dieguez was directly
tied to well over 150 kilograms of cocaine by specific
testimony, and Dieguez does not provide any specific evidence
that the witnesses’ estimates or recollections were incorrect
other than to contend that the witnesses were unreliable. See
United States v. Randall,
171 F.3d 195, 210-11 (4th Cir. 1999)
(explaining that a defendant bears the burden of establishing
that information the district court relied on in calculating the
relevant drug quantity is incorrect); see also United States v.
6
Lamarr, 75 F.3d 964, 972-73 (4th Cir. 1996) (concluding that
approximation of drug quantity for sentencing not clearly
erroneous if supported by competent record evidence, which can
include the contradictory testimony of a coconspirator).
Dieguez further avers that the estimates in the presentence
report (“PSR”) do not “make sense” given that Dieguez apparently
owed money to his suppliers and did not live beyond his means.
Given that the amounts at issue, Dieguez asserts that he would
have netted “millions and millions of dollars,” and thus,
Dieguez contends that the allegations of drug quantity are
inconsistent with the facts. We find that Dieguez’s argument is
without merit. First, while Dieguez apparently dealt with large
amounts of drugs and money, only a portion of that money would
be profit, and a lesser portion would be profit to him. Second,
the Government presented evidence of nearly $200,000 in
unexplained cash deposits into one of Dieguez’s accounts over a
four year period. Third, the Government presented evidence that
Dieguez spent a substantial amount of money on ongoing
construction projects on his property. Accordingly, there was
no error in calculating the drug quantity.
V.
Dieguez next asserts that the district court erred in
enhancing his offense level under U.S. Sentencing Guidelines
Manual § 3B1.1(a) (2013). Under section 3B1.1(a) of the
7
Guidelines, a defendant qualifies for a four-level enhancement
to his offense level if he “was an organizer or leader of a
criminal activity that involved five or more participants or was
otherwise extensive.” USSG § 3B1.1(a). The district court’s
determination that a defendant was an organizer or leader is a
factual matter reviewed for clear error. United States v.
Thorson, 633 F.3d 312, 317 (4th Cir. 2011).
Factors distinguishing a leadership or organizational role
from lesser roles include:
the exercise of decision making authority, the nature
of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense,
the nature and scope of the illegal activity, and the
degree of control and authority exercised over others.
USSG § 3B1.1, cmt. n.4. The commentary to the Guideline also
states that there can “be more than one person who qualifies as
a leader or organizer of a criminal association or conspiracy.”
Id. “Leadership over only one other participant is sufficient
as long as there is some control exercised.” United States v.
Rashwan,
328 F.3d 160, 166 (4th Cir. 2003).
Dieguez contends that there was no testimony that he
satisfied any of the factors outlined in the Guidelines
commentary. He also avers that the district court failed to
provide a sufficient analysis. However, the trial testimony
showed that Dieguez had couriers, an accountant and an assistant
8
working with him in his drug business. In addition, Dieguez
arranged for the transportation and sale of large quantities of
cocaine. Further, as the district court explicitly noted, many
meetings and transactions took place at Dieguez’s home.
Finally, Dieguez’s counsel admitted at sentencing that the trial
testimony alone was sufficient to support a three-level
enhancement under USSG § 3B1.1(b) and, aside from denying his
involvement altogether, provided no evidence undermining the
factual allegations in the PSR. Accordingly, we conclude that
the district court did not clearly err. See United States v.
Terry, 916 F.2d 157, 162 (4th Cir. 1990) (stating that
“defendant has an affirmative duty to make a showing that the
information in the [PSR] is unreliable, and articulate the
reasons why the facts contained therein are untrue or
inaccurate”).
VI.
Section 2D1.1(b)(1) of the Guidelines provides for a
two-level enhancement “[i]f a dangerous weapon (including a
firearm) was possessed” in connection with the drug offense.
USSG § 2D1.1(b)(1). The commentary to § 2D1.1 explains that the
weapons enhancement should be applied “if the weapon was
present, unless it is clearly improbable that the weapon was
connected with the offense.” USSG § 2D1.1, cmt. n.11(A). The
district court’s decision to apply the enhancement is reviewed
9
for clear error. United States v. Harris, 128 F.3d 850, 852
(4th Cir. 1997).
“[E]nhancement under Section 2D1.1(b)(1) does not require
proof of precisely concurrent acts, for example, gun in hand
while in the act of storing drugs, drugs in hand while in the
act of retrieving a gun.” Id. (alteration and internal
quotation marks omitted). Instead, “possession of the weapon
during the commission of the offense is all that is needed to
invoke the enhancement.” United States v. Apple,
962 F.2d 335,
338 (4th Cir. 1992); accord United States v. McAllister,
272
F.3d 228, 234 (4th Cir. 2001) (“In order to prove that a weapon
was present, the Government need show only that the weapon was
possessed during the relevant illegal drug activity.”).
“[P]roof of constructive possession of the [firearm] is
sufficient, and the Government is entitled to rely on
circumstantial evidence to carry its burden.” United States v.
Manigan,
592 F.3d 621, 629 (4th Cir. 2010).
Dieguez admitted to possession of a .22 pistol found in a
bedroom in Dieguez’s house. Further, the PSR stated that
Dieguez made several inquiries regarding purchasing firearms due
to his outstanding drug debt and that he told Aguilar-Rodriguez
that he had, in fact, obtained a firearm. In addition, a .45
handgun was found in a table near the entryway of Dieguez’s
house. Further, Dieguez was seen shooting a rifle and a handgun
10
on his property. We find this evidence was sufficient to show
Dieguez’s possession of both firearms by a preponderance of the
evidence. See United States v. Lawing, 703 F.3d 229, 240 (4th
Cir. 2012) (explaining that constructive possession requires
showing of “ownership, dominion, or control over the contraband
itself or the premises . . . in which the contraband is
concealed” (internal quotation marks omitted)).
Once the Government establishes a defendant’s possession of
a firearm, the weapons enhancement is proper unless a connection
between that possession and the narcotics offense is “clearly
improbable.” The defendant bears the burden of showing such a
clear improbability. Manigan, 592 F.3d at 630-32 & n.8.
Dieguez contends that the firearm found in the bedroom was
a collector’s item and that neither the gun found in the bedroom
nor the handgun found in a table by the entrance of the home was
loaded. He also notes that no drugs were found in the home.
However, the test requires nothing more than that the guns be
located in the same place where drugs are stored or distributed.
Harris, 128 F.3d at 852-53. The record is replete with evidence
regarding drug transactions in Dieguez’s home. Moreover, the
presence of the firearms, whether or not they were loaded, could
act as a deterrent to potential drug thieves and serve as a
security measure.
Id. (noting that unloaded weapons still
increase the risk of violence). Dieguez did not claim that he
11
or anyone in his family used the guns for hunting or sport.
Because Dieguez had only a weak case to support his “clearly
improbable” theory and he possessed two firearms in his home
which was the site of numerous drug transactions, the district
court did not clearly err in applying the enhancement. See
Manigan, 592 F.3d at 630 (noting that “a sentencing court might
reasonably infer, in the proper circumstances, that a handgun
seized from the residence of a drug trafficker was possessed in
connection with his drug activities”).
VII.
Dieguez next contends that his sentence was procedurally
unreasonable because the district court failed to consider the
sentencing disparities between his sentence and those of his
alleged coconspirators, who received sentences between 46 and
156 months. However, although district courts are to consider
disparities in sentencing when imposing a sentence, see 18
U.S.C. § 3553(a)(6) (2012), we have expressed doubt whether “a
defendant may . . . challenge a sentence on the ground that a
co-conspirator was sentenced differently.” United States v.
Goff, 907 F.2d 1441, 1446-47 (4th Cir. 1990) (collecting cases),
superseded on other grounds by USSG app. C amend. 508; see also
United States v. Sierra-Villegas,
774 F.3d 1093, 1103 (6th Cir.
2014) (“[T]he district court may consider the defendant’s
sentence in comparison with that of co-defendants at sentencing,
12
but need not do so; it is a matter of discretion.”), cert.
denied, 136 S. Ct. 34 (2015). Section 3553(a)(6) is aimed
primarily at eliminating national sentencing inequity, not
differences between the sentences of coconspirators. United
States v. Withers, 100 F.3d 1142, 1149 (4th Cir. 1996); see also
United States v. Simmons,
501 F.3d 620, 623-24 (6th Cir. 2007)
(collecting cases).
Moreover, Dieguez did not specifically raise the issue of
sentencing disparity below, although the district court stated,
in any event, that it had considered all of the sentencing
factors. Further, Dieguez and his coconspirators were not
similarly situated. Accordingly, the district court did not err
in this regard.
VIII.
Finally, Dieguez asserts that his 400-month sentence is
substantively unreasonable given that he was a non-violent,
first-time offender, with a strong work ethic and supportive
family background. We examine the substantive reasonableness of
the sentence under “the totality of the circumstances.” Gall v.
United States, 552 U.S. 38, 51 (2007). A sentence “within or
below a properly calculated Guidelines range is presumptively
reasonable [on appeal].” United States v. Louthian,
756 F.3d
295, 306 (4th Cir.), cert. denied,
135 S. Ct. 421 (2014). The
defendant bears the burden to rebut this presumption “by showing
13
that the sentence is unreasonable when measured against the
. . . § 3553(a) factors.” Id. In evaluating the sentence for
an abuse of discretion, this court “give[s] due deference to the
[d]istrict [c]ourt’s reasoned and reasonable decision that the
§ 3553(a) factors, on the whole, justified the sentence.”
Gall,
552 U.S. at 59-60. We “can reverse a sentence only if it is
unreasonable, even if the sentence would not have been the
choice of the appellate court.” United States v. Yooho Weon,
722 F.3d 583, 590 (4th Cir. 2013) (internal quotation marks
omitted).
Here, the district court expressly acknowledged Dieguez’s
lack of a criminal record and his work history. And indeed, the
court did vary downward in Dieguez’s case from the Guidelines
range of life in prison, albeit not to the degree that he
requested. The court opined that Dieguez was a high-level
leader in a very large-scale conspiracy involving enormous
quantities of cocaine, not regularly seen by the district court.
The court noted the seriousness of the crime, and the necessity
to deter both Dieguez’s future conduct and the conduct of
others. The court balanced these considerations with those that
weighed in favor of a shorter sentence, such as Dieguez’s
personal history and characteristics—namely his clean past
record, the fact that his obstruction enhancement might chill
the right to take the stand, and the need to encourage his good
14
behavior in prison. The court ultimately found that, while the
positive factors justified a below-Guidelines sentence, a
substantial sentence nevertheless was warranted. After
considering the totality of the circumstances, we conclude that
Dieguez has not rebutted the presumption of substantive
reasonableness accorded to his below-Guidelines sentence.
Accordingly, we affirm the judgment of the district court.
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
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