Filed: Jun. 06, 2012
Latest Update: Mar. 26, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4771 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOBANI GONZALEZ-TREJO, a/k/a Dog, Defendant - Appellant. No. 11-4772 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EDILBERTO ANGELES-GUZMAN, a/k/a Primo, Defendant – Appellant. Appeals from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:09-cr-00264-BO-1; 5:09-cr-00264-BO-2) Submitted:
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4771 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOBANI GONZALEZ-TREJO, a/k/a Dog, Defendant - Appellant. No. 11-4772 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EDILBERTO ANGELES-GUZMAN, a/k/a Primo, Defendant – Appellant. Appeals from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:09-cr-00264-BO-1; 5:09-cr-00264-BO-2) Submitted: M..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4771
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOBANI GONZALEZ-TREJO, a/k/a Dog,
Defendant - Appellant.
No. 11-4772
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDILBERTO ANGELES-GUZMAN, a/k/a Primo,
Defendant – Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:09-cr-00264-BO-1; 5:09-cr-00264-BO-2)
Submitted: May 3, 2012 Decided: June 6, 2012
Before AGEE and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Gregory B. Smith, LAW OFFICES OF GREGORY B. SMITH, Washington,
D.C., for Appellant Jobani Gonzalez-Trejo; Jorgelina E. Araneda,
ARANEDA LAW FIRM, PC, Raleigh, North Carolina, for Appellant
Edilberto Angeles-Guzman. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, Kristine L. Fritz, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Jobani Gonzalez-Trejo and Edilberto Angeles-Guzman
(collectively Appellants) pleaded guilty to conspiracy to
distribute and to possess with intent to distribute five
kilograms or more of cocaine, 21 U.S.C. §§ 841(a)(1) and 846,
and related substantive offenses. The Appellants each received
a sentence of 151 months’ imprisonment. On appeal, they
challenge their respective sentences. We affirm.
Appellants first argue that the district court erred
in calculating the base drug amount attributable to them under
United States Sentencing Commission Guidelines Manual (USSG)
§ 2D1.1 (2010). More specifically, they contend that the
district court’s finding concerning the base drug amount
required it to start at a base offense level of 32 instead of
34.
A Presentence Investigation Report (PSR) was prepared
for each of the Appellants. In the reports, both Appellants
were attributed in excess of 156 kilograms of cocaine for their
respective roles in the conspiracy, which resulted in a base
offense level of 38, see USSG § 2D1.1(c)(1) (requiring more than
150 kilograms of cocaine). Much of this drug amount was based
on information provided by a confidential informant (CI). The
Appellants objected to the drug calculations, urging the
district court to find that they were responsible for between
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five and fifteen kilograms of cocaine, which corresponded to a
base offense level of 32, see id. § 2D1.1(c)(4) (requiring at
least five but less than fifteen kilograms of cocaine). The
district court sustained the objection in part based on its
finding that the CI was not a “credible witness for the
government.” (J.A. 207). Although its drug amount finding was
no model of clarity, the district court made a conservative
estimate of the amount of cocaine attributable to the
Appellants, finding them responsible for between fifteen and
fifty kilograms of cocaine, which resulted in a base offense
level of 34, see USSG § 2D1.1(c)(3) (requiring at least fifteen
but less than fifty kilograms of cocaine).
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); United States v. Randall,
171 F.3d 195, 210
(4th Cir. 1999). Under USSG § 1B1.3(a)(1)(B), a defendant is
responsible not only for his own acts, but also for “all
reasonably foreseeable acts” of his coconspirators in
furtherance of the joint criminal activity. USSG
§ 1B1.3(a)(1)(B). The defendant bears the burden of
establishing that the information relied upon by the district
court is erroneous. Randall, 171 F.3d at 210–11.
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On appeal, the Appellants argue that the district
court specifically found that between five and fifty kilograms
of cocaine were attributable to them for sentencing purposes.
According to the Appellants, because such a finding straddles
base offense levels 32, see USSG § 2D1.1(c)(4) (requiring at
least five but less than fifteen kilograms of cocaine), and 34,
see id. § 2D1.1(c)(3) (requiring at least fifteen but less than
fifty kilograms of cocaine), the district court was required to
assign each of them a base offense level of 32 instead of 34.
The problem with the Appellants’ argument is that it rests on a
faulty premise. Although the district court stated that it was
“inclined to believe that the preponderance of the evidence
establishes between five and fifty keys,” (J.A. 153), the
district court went on to clarify and find that a preponderance
of the evidence supported an attributable drug amount between
fifteen and fifty kilograms of cocaine which corresponded to a
base offense level of 34. Considering the evidence before the
district court, such finding is not clearly erroneous.
The Appellants next argue that the district court
improperly applied a two-level enhancement for possession of a
firearm. Under USSG § 2D1.1(b)(1), a district court must
increase a defendant’s offense level two levels “[i]f a
dangerous weapon (including a firearm) was possessed.” USSG
§ 2D1.1(b)(1). In order to prove that a weapon was present, the
5
government “need show only that the weapon was possessed during
the relevant illegal drug activity.” United States v.
McAllister, 272 F.3d 228, 233–34 (4th Cir. 2001).
Here, the PSRs recommended application of the two-
level enhancement under USSG § 2D1.1(b)(1) because a “firearm
was seized from a residence used by [the Appellants] to store
and distribute cocaine.” (J.A. 197-98). Angeles-Guzman
objected to the recommendation, but Gonzalez-Trejo did not. The
district court overruled Angeles-Guzman’s objection.
Consequently, the district court applied the enhancement to the
Appellants.
With regard to Angeles-Guzman’s challenge, our review
is for clear error. McAllister, 272 F.3d at 234. Under this
standard of review, we will only reverse if left with the
“definite and firm conviction that a mistake has been
committed.” United States v. Harvey, 532 F.3d 326, 336–37 (4th
Cir. 2008) (citation and internal quotation marks omitted).
Gonzalez-Trejo’s failure to raise this issue below
means that he must meet the more demanding plain error standard.
See United States v. Massenburg, 564 F.3d 337, 341–42 (4th Cir.
2009) (failure to raise issue at sentencing mandates plain error
review). In order to satisfy the plain error standard,
Gonzalez-Trejo must show: (1) an error was made; (2) the error
is plain; and (3) the error affects substantial rights. United
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States v. Olano, 507 U.S. 725, 732 (1993). The decision to
correct the error lies within this court’s discretion, which
should be exercised “only if the error seriously affects the
fairness, integrity or public reputation of judicial
proceedings.” Massenburg, 564 F.3d at 343 (citation and
internal quotation marks omitted).
The USSG § 2D1.1(b)(1) enhancement “reflects the
increased danger of violence when drug traffickers possess
weapons” and should be applied “if the weapon was present,
unless it is clearly improbable that the weapon was connected
with the offense.” USSG § 2D1.1(b)(1), cmt. n.3. It is the
defendant’s burden to show that a connection between his
possession of a firearm and his narcotic offense is “clearly
improbable.” United States v. Harris, 128 F.3d 850, 852 (4th
Cir. 1997) (internal quotation marks omitted).
The enhancement is proper when “the weapon 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) (citation and internal quotation marks omitted), even
in the absence of “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.” Harris, 128 F.3d at
852 (citation and internal quotation marks omitted).
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Pursuant to USSG § 1B1.3(a)(1)(B), a defendant may be
held responsible for a firearm possessed by another member of
the conspiracy if possession of the firearm was “reasonably
foreseeable” to the defendant and “in furtherance of the jointly
undertaken criminal activity.” USSG § 1B1.3(a)(1)(B); United
States v. Kimberlin, 18 F.3d 1156, 1159-60 (4th Cir. 1994).
Moreover, “[a]bsent evidence of exceptional circumstances, . . .
it [is] fairly inferable that a codefendant’s possession of a
dangerous weapon is foreseeable to a defendant with reason to
believe that their collaborative criminal venture includes an
exchange of controlled substances for a large amount of cash.”
Kimberlin, 18 F.3d at 1160 (citation and internal quotation
marks omitted and alterations in original).
The Appellants argue that the district court erred by
holding them responsible for a firearm recovered from the
mobile home that Angeles-Guzman shared with his brother and
cousin. The Appellants first posit that there was no evidence
that the firearm was connected to the conspiracy. With regard
to Gonzalez-Trejo, the argument is taken one step further,
positing that there was no evidence that Gonzalez-Trejo had ever
been to the home or was connected to it in any way.
In this case, the evidence showed that the Appellants
were involved in a drug conspiracy which involved the steady
sale and storage of cocaine at a mobile home that Angeles-Guzman
8
shared with his brother and cousin. Following one of the
transactions, the one which resulted in the arrests of the
Appellants, a firearm was found in the living room of the mobile
home and cocaine, which, at the time of the search, Angeles-
Guzman claimed was his, was found in a bedroom in the home.
Given the close relationship between the Appellants and the
sizeable amount of cocaine that was being sold during the
conspiracy, it was reasonably foreseeable to both of the
Appellants that a firearm in furtherance of their joint drug
distribution efforts would be kept in the mobile home.
Kimberlin, 18 F.3d at 1160. Put another way, the Appellants
have not shown that it was “clearly improbable” that the firearm
was connected with the drug conspiracy. Accordingly, there is
no clear error, let alone plain error. We hold that the
district court did not err in imposing the two-level enhancement
for possession of a firearm in furtherance of the conspiracy. *
*
Gonzalez-Trejo contends that he received ineffective
assistance of counsel at sentencing that resulted in an improper
sentence. Claims of ineffective assistance of counsel generally
are not cognizable on direct appeal. United States v. King, 119
F.3d 290, 295 (4th Cir. 1997). Rather, to allow for adequate
development of the record, federal prisoners ordinarily must
pursue such claims in a motion under 28 U.S.C. § 2255. United
States v. Hoyle,
33 F.3d 415, 418 (4th Cir. 1994). An exception
exists when the record conclusively establishes ineffective
assistance of counsel. King, 119 F.3d at 295. Because our
review of the record in this appeal does not conclusively
establish ineffective assistance of counsel, we conclude
(Continued)
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For the reasons stated, we affirm the judgments of the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
Gonzalez-Trejo’s ineffective assistance claim should be brought
in a motion under § 2255.
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