Filed: Nov. 22, 2016
Latest Update: Mar. 03, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4267 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARTIN MARTINEZ SALDANA, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:12-cr-00049-RLV-DCK-1) Argued: September 22, 2016 Decided: November 22, 2016 Before FLOYD and HARRIS, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4267 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARTIN MARTINEZ SALDANA, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:12-cr-00049-RLV-DCK-1) Argued: September 22, 2016 Decided: November 22, 2016 Before FLOYD and HARRIS, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4267
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARTIN MARTINEZ SALDANA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:12-cr-00049-RLV-DCK-1)
Argued: September 22, 2016 Decided: November 22, 2016
Before FLOYD and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Robert Lonnie Cooper, COOPER, DAVIS & COOPER,
Fayetteville, North Carolina, for Appellant. Amy Elizabeth Ray,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee. ON BRIEF: Jill Westmoreland Rose, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Martin Martinez Saldana of conspiracy to
distribute and to possess with intent to distribute 50 grams or
more of methamphetamine and 50 to 500 grams of a mixture and
substance containing a detectable amount of methamphetamine, in
violation of 21 U.S.C. § 846; and receiving or possessing a
short-barreled shotgun that was not registered to him in the
National Firearms Registration and Transfer Record, in violation
of 26 U.S.C. § 5861(c)-(d). The district court sentenced Saldana
to life imprisonment. On appeal, Saldana challenges both the
district court’s denial of his motion for judgment of acquittal
and his within-Guidelines life sentence. Finding no error, we
affirm.
I.
A.
In 2008, the Ashe County, North Carolina, Sherriff’s Office
received information from an anonymous source that Saldana was
involved in drug trafficking. Officers began surveilling
Saldana’s property in 2010, around the time they learned from a
Virginia-based investigative team that a person trafficking
methamphetamine had crashed his motorcycle near Saldana’s
residence. In early 2012, the same team reported that a Hispanic
man named Martin who worked at Adams Construction was
trafficking methamphetamine.
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During 2012, the investigation into Saldana’s drug
trafficking activity intensified. Officers orchestrated
controlled purchases from two of Saldana’s customers, Danny
Eller and Bobby Shore. After the officers conducted searches of
the men’s residences that resulted in the seizure of
methamphetamine, firearms, and cash, the two men agreed to
cooperate in the Saldana investigation.
In late October and early November 2012, Eller conducted
two controlled purchases of methamphetamine from Jose Pina, who
rented a trailer on Saldana’s property and ran Saldana’s
methamphetamine business when Saldana was in Mexico. The bag of
methamphetamine Eller purchased from Pina was wrapped in black
electrical tape, cellophane, and a dryer sheet, which is a
common method of masking the odor of drugs. After the second
purchase, Pina stopped returning Eller’s phone calls.
Accordingly, on December 11, 2012, officers decided to send
Eller unannounced to Saldana’s property to talk to either
Saldana or Pina. Pina did not answer the door of his trailer,
but Eller recorded a conversation with Saldana. During this
conversation, Saldana told Eller that it was “too hot,” which
Eller testified meant that “the law [wa]s on [their] tails.”
J.A. 500. At another point in the conversation, Saldana said,
“I’m telling you so, I mean, things around here are pretty,
pretty quiet,” meaning that Saldana was not conducting any drug
3
transactions at the time. J.A. 501-02. Saldana also told Eller
to “lay low,” or to “try to stay out of trouble.” J.A. 502.
The next day, officers sent Shore to Saldana’s property.
Shore recorded Saldana saying that he was going to leave for
Mexico the following night and asking Shore not to tell anyone
about his plan. According to Shore, a few days prior to this
meeting, Saldana had asked whether Shore knew if anyone was
“getting in any trouble.” J.A. 548.
Knowing that they had to act quickly, officers immediately
executed a search warrant at Saldana’s home and the adjacent
property that Saldana owned. Officers discovered four unloaded
firearms, including an unregistered, short-barreled shotgun;
ammunition; electrical tape; cellophane; dryer sheets; latex
gloves; one of Saldana’s identification cards; an overnight bag
containing men’s clothing, Saldana’s bank statements, and his
other personal items; and two cell phones that were found on
Saldana’s person.
In February 2013, Pina disclosed where Saldana stashed
methamphetamine and cash. Based on this information, officers
conducted another search of Saldana’s property and found
approximately $50,000 concealed in a buried PVC pipe;
methamphetamine wrapped in electrical tape, cellophane, and
dryer sheets; empty buried PVC pipes; two magazines for a gun;
and ammunition.
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B.
A federal grand jury indicted Saldana and charged him with
conspiracy to distribute and possess with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 846; possession of
a firearm in furtherance of a drug-trafficking offense, in
violation of 18 U.S.C. § 924(c); possession of a firearm as a
convicted felon, in violation of 18 U.S.C. § 922(g)(1);
possession of a firearm as a person convicted of a misdemeanor
crime of domestic violence, in violation of 18 U.S.C. §
922(g)(9); and possession of a short-barreled shotgun that was
not registered to him, in violation of 26 U.S.C. § 5861(c)-(d).
The government later dismissed without prejudice the charges
under 18 U.S.C. § 922(g).
Saldana pleaded not guilty and proceeded to a jury trial.
Eller and Shore testified about their history of buying
methamphetamine from Saldana, and Pina testified about selling
methamphetamine on Saldana’s behalf. Two of Saldana’s coworkers
also testified as government witnesses about Saldana’s drug
trafficking activity. Clara Caudell testified that she worked
with Saldana at Adams Construction, that she bought
methamphetamine from him fairly consistently for a period of
five years, and that she sold some of the methamphetamine to
support her drug use. James Hawkins, another of Saldana’s
coworkers at Adams Construction, testified that he sold “quite a
5
bit” of methamphetamine for Saldana and that sometimes Saldana
would “front” the drugs and Hawkins would “pay him later.” J.A.
579-80.
The district court denied Saldana’s motion for a judgment
of acquittal. The jury found Saldana guilty of participating in
the drug trafficking conspiracy and possessing an unregistered,
short-barreled shotgun, but it found him not guilty of
possessing a firearm in furtherance of a drug trafficking crime.
In Saldana’s presentence report, the probation officer
grouped the offenses and calculated a base offense level of 38
using the 5.9 kilograms of actual methamphetamine attributable
to Saldana. The probation officer recommended a 2-level
enhancement because Saldana possessed a dangerous weapon, a 2-
level enhancement because the offense involved importation of
methamphetamine that Saldana knew was imported unlawfully, a 2-
level enhancement because Saldana maintained premises for
distributing methamphetamine, a 4-level enhancement because
Saldana was an organizer or leader of the conspiracy, and a 2-
level enhancement because Saldana “committed the offense as part
of a pattern of criminal conduct engaged in as a livelihood.”
These enhancements yielded an adjusted offense level of 50. The
probation officer recommended a total offense level of 43, the
highest possible offense level under the Sentencing Guidelines.
6
With a criminal history category of I, Saldana’s advisory
Guidelines sentence was life imprisonment.
At sentencing, the Government advised the court that the
parties had agreed Saldana would withdraw his objections to the
presentence report and the Government would withdraw the two-
level enhancements for importing methamphetamine, maintaining a
premises for purpose of distributing a controlled substance, and
engaging in criminal conduct as a livelihood. Saldana’s adjusted
offense level without these enhancements was 44, but his total
offense level remained 43, and his Guidelines sentence was still
life imprisonment.
Saldana’s counsel moved for a downward departure or
variance based on Saldana’s physical appearance. USSG § 5H1.4,
p.s. (providing that “[p]hysical condition or appearance . . .
may be relevant in determining whether a departure is warranted,
if the condition or appearance . . . is present to an unusual
degree and distinguishes the case from the typical cases covered
by the guidelines”). Counsel explained that Saldana had “scars
all over his body” from the gunshot and stab wounds he sustained
when he was robbed in Mexico. J.A. 755. Counsel argued that
Saldana’s scars and soft-spoken nature would prompt other
inmates to perceive him as vulnerable, which would “subject
[him] to aggression” while incarcerated. J.A. 755-56. It is also
possible, counsel contended, that inmates would believe that
7
Saldana is an informant and “should be marked for death.” J.A.
756. Counsel averred that, because Saldana is frail and not
capable of protecting himself, his only options in prison are to
join a gang or risk being marked as prey. Additionally, counsel
argued that because there was no evidence of violence in the
offense conduct and the jury did not convict Saldana of
possessing the firearms in furtherance of the drug trafficking
conspiracy, Saldana was far less “sinister” or “violent” than
others sentenced by the court. J.A. 758. Finally, counsel
emphasized Saldana’s poor health, which reduced his life
expectancy, and his yearning to be with his family.
The court denied Saldana’s motion for a downward departure
because Saldana’s physical appearance and medical conditions
were “not extraordinary in degree and d[id] not make a
compelling case for a particular vulnerability in the prison
environment.” J.A. 764. The court noted that many of Saldana’s
ailments “appear to be successfully addressed by medication” and
that Saldana’s “scars could be taken as a mark of toughness” as
easily as “a mark of vulnerability.” J.A. 764. Moreover,
according to the district court, Saldana’s argument regarding
the pressure to join a gang could apply to every inmate and,
therefore, did not warrant a departure from the Guidelines.
The court also declined to grant a variance. The court
emphasized the “extremely serious” nature of the offense
8
considering “the exceptional purity” of the methamphetamine and
the “exceptionally high amount” of methamphetamine being “moved
through numerous traffickers” under Saldana, who qualified as
the “kingpin” of the methamphetamine trafficking organization.
J.A. 765-66. The court also observed that Saldana used his
property to “hide proceeds . . . and facilitate . . .
distribution” and used his “naturalized citizenship” to easily
move back and forth from Mexico. J.A. 765-66. The court stated
that any damage to Saldana’s family caused by his imprisonment
can only be attributed to his choice to participate in criminal
activity. J.A. 765. Finally, the court found that Saldana’s
argument regarding his lowered life expectancy was “speculative”
and that Saldana’s legitimate employment, which “likely
provid[ed] a cover for his drug dealing,” also did not justify a
variance. J.A. 766.
The court sentenced Saldana to life imprisonment on the
drug conspiracy charge and a term of 120 months on the firearm
charge, to be served concurrently. Saldana filed a timely
appeal.
II.
Saldana first challenges the sufficiency of the evidence
supporting his drug conspiracy conviction. We review de novo the
district court’s denial of a motion for judgment of acquittal.
United States v. Engle, 676 F.3d 405, 419 (4th Cir. 2012). In
9
assessing the sufficiency of the evidence, we determine whether
there is substantial evidence to support the conviction when
viewed in the light most favorable to the government. Id.
“Substantial evidence is evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of guilt beyond a reasonable doubt.”
Id. Thus, “[a]
defendant bringing a sufficiency challenge must overcome a heavy
burden, and reversal for insufficiency must be confined to cases
where the prosecution’s failure is clear.”
Id. (citation and
internal quotation marks omitted).
To obtain a drug trafficking conspiracy conviction under 21
U.S.C. § 846, “the government must prove that (1) the defendant
entered into an agreement with one or more persons to engage in
conduct that violated 21 U.S.C. § 841(a)(1); (2) that the
defendant had knowledge of that conspiracy; and (3) that the
defendant knowingly and voluntarily participated in the
conspiracy.” United States v. Howard, 773 F.3d 519, 525 (4th
Cir. 2014) (alterations and internal quotation marks omitted).
“Given the clandestine and covert nature of conspiracies, the
government can prove the existence of a conspiracy by
circumstantial evidence alone.”
Id. (internal quotation marks
omitted). “Evidence of continuing relationships and repeated
transactions can support the finding that there was a
conspiracy, especially when coupled with substantial quantities
10
of drugs.” Id. at 526 (alterations and internal quotation marks
omitted).
Having thoroughly reviewed the record, we conclude that
there was more than sufficient evidence to convict Saldana of
conspiring to distribute and possess with intent to distribute
methamphetamine. The Government presented ample evidence
demonstrating that Saldana was the leader of a drug trafficking
operation involving a large quantity of methamphetamine. The
evidence of Saldana’s guilt included the following: (1) Eller’s
and Shore’s recorded conversations with Saldana in which Saldana
expressed his concerns about law enforcement activity in the
area and said that he planned to flee to Mexico; (2) searches of
Saldana’s property that produced methamphetamine, drug packaging
materials, firearms, ammunition, and a large sum of money; (3)
testimony from Eller, Shore, and Caudell that they bought
methamphetamine, some of which was used for redistribution, from
Saldana, or from Pina in Saldana’s absence; and (4) Pina’s and
Hawkins’s testimony that they sold methamphetamine for Saldana.
Although Saldana argues that the coconspirators who testified at
his trial are untrustworthy, “[i]n evaluating the sufficiency of
the evidence, we do not review the credibility of the
witnesses.” United States v. Foster, 507 F.3d 233, 245 (4th Cir.
2007).
11
III.
Saldana also argues that his sentence is unreasonable. We
review a sentence for reasonableness under a deferential abuse-
-of-discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007); United States v. Lymas,
781 F.3d 106, 111 (4th Cir.
2015). This review requires consideration of both the procedural
and substantive reasonableness of the sentence.
Gall, 552 U.S.
at 51.
In determining whether a sentence is procedurally
reasonable, we examine, among other factors, whether the
district court considered the 18 U.S.C. § 3553(a) factors and
sufficiently explained its chosen sentence. Id. at 51. Saldana
contends that the court did not adequately address the § 3553(a)
factors and that the court’s explanation for the sentence was
therefore deficient. We conclude that Saldana’s argument is
meritless, as the court provided a lengthy and thorough
explanation for the sentence, drawing upon its careful
consideration of the § 3553(a) factors, including the nature and
circumstances of the offense, Saldana’s history and
characteristics, the need to afford adequate deterrence to
criminal conduct, and the need to protect the public.
Saldana also challenges the substantive reasonableness of
his life sentence. A sentence, such as Saldana’s, that is
“within . . . a properly calculated [Sentencing] Guidelines
12
range is presumptively [substantively] reasonable. Such a
presumption can only be rebutted by showing that the sentence is
unreasonable when measured against the 18 U.S.C. § 3553(a)
factors.” United States v. Louthian, 756 F.3d 295, 306 (4th Cir.
2014) (citation omitted). Saldana attempts to rebut the
presumption by contending that the court failed to accord
appropriate weight to the mitigating factors emphasized at the
sentencing hearing, including the “extraordinary likelihood”
that he will be victimized while in prison, the possibility that
he will lose his strong familial relationships, his nonviolent
nature, and his deteriorating health. Appellant’s Br. at 26.
We conclude that Saldana has failed to make the requisite
showing. The district court considered the mitigating factors
and concluded that there was no reason to depart or vary from
the Guidelines. Saldana did not demonstrate to the satisfaction
of the district court that he was extraordinarily frail, and the
court found that many of his medical issues are successfully
addressed by medication. The court concluded that his physical
appearance does not make him particularly vulnerable in prison
because his scars could be taken as a mark of toughness. The
court further determined that any potential pressure Saldana
would face to join a gang applied to all prisoners and therefore
did not justify a below-Guidelines sentence. There is no showing
here that these findings are clearly erroneous.
13
The court did not ignore the likelihood that Saldana would
lose the support of his family while incarcerated; rather, it
concluded that losing familial connections is a consequence of
Saldana’s choice to participate in criminal activity. The court
permissibly concluded that the massive amount of pure
methamphetamine, Saldana’s leadership role in the drug
trafficking conspiracy, the numerous people involved in the
conspiracy, and the fact that Saldana used his property and
citizenship to further the conspiracy outweighed the mitigating
factors presented by Saldana and warranted a life sentence.
Although these findings were certainly not compelled by this
record, they are not clearly erroneous, and thus do not render
the imposition of a life sentence an abuse of discretion.
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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