Filed: Aug. 06, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4832 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARIA CARBAJAL-NIETO, Defendant - Appellant. No. 08-5139 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ESEQUIEL HERRERA-NIETO, Defendant - Appellant. Appeals from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:06-cr-00037-RLV-DCK-9; 5:06-cr-00037-RLV-DCK-2) Submitted: July 20, 20
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4832 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARIA CARBAJAL-NIETO, Defendant - Appellant. No. 08-5139 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ESEQUIEL HERRERA-NIETO, Defendant - Appellant. Appeals from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:06-cr-00037-RLV-DCK-9; 5:06-cr-00037-RLV-DCK-2) Submitted: July 20, 201..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4832
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARIA CARBAJAL-NIETO,
Defendant - Appellant.
No. 08-5139
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ESEQUIEL HERRERA-NIETO,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:06-cr-00037-RLV-DCK-9;
5:06-cr-00037-RLV-DCK-2)
Submitted: July 20, 2010 Decided: August 6, 2010
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Chiege O. Kalu Okwara, Charlotte, North Carolina; Richard A.
Culler, CULLER & CULLER, P.A., Charlotte, North Carolina, for
Appellants. Edward R. Ryan, United States Attorney, Charlotte,
North Carolina; Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Esequiel Herrera-Nieto and Maria Carbajal-Nieto, who
are husband and wife, were tried together on various drug and
firearm charges. Esequiel was convicted of conspiracy to
possess with intent to distribute cocaine and methamphetamine.
He was also convicted of five substantive possession with intent
to distribute charges and use or carry of a firearm during and
in relation to a drug trafficking crime. Maria was convicted of
conspiracy and one substantive offense. Both appeal their
convictions, and Maria also appeals from her 235-month sentence.
We affirm.
I.
Esequiel contends that the district court erred by
denying his motion for judgment of acquittal. He asserted that
the evidence was insufficient to support his conviction for
using or carrying a firearm during and in relation to a drug
trafficking crime or possession of a firearm in furtherance of a
drug trafficking crime. We review de novo the denial of a Fed.
R. Crim. P. 29 motion for judgment of acquittal. United
States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). When a
Rule 29 motion was based on a claim of insufficient evidence,
the jury’s verdict must be sustained “if there is substantial
evidence, taking the view most favorable to the Government, to
3
support it.” United States v. Abu Ali, 528 F.3d 210, 244 (4th
Cir. 2008), cert. denied,
129 S. Ct. 1312 (2009). This court
“ha[s] defined ‘substantial evidence’ as 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.”
Alerre, 430 F.3d at 693.
We “must consider circumstantial as well as direct
evidence, and allow the government the benefit of all reasonable
inferences from the facts proven to those sought to be
established.” United States v. Tresvant, 677 F.2d 1018, 1021
(4th Cir. 1982). This court may not weigh the evidence or
review the credibility of the witnesses. United States v.
Allen,
491 F.3d 178, 185 (4th Cir. 2007). If the evidence
“supports different, reasonable interpretations, the jury
decides which interpretation to believe.” United States v.
Murphy,
35 F.3d 143, 148 (4th Cir. 1994). A defendant
challenging the sufficiency of the evidence faces a heavy
burden. United States v. Beidler,
110 F.3d 1064, 1067 (4th Cir.
1997).
To convict Esequiel of violating 18 U.S.C. § 924(c)
(2006), “the [G]overnment [had to] prove that [Esequiel] used or
carried a firearm during and in relation to a drug trafficking
crime or possessed a firearm in furtherance of a drug
trafficking crime.” United States v. Stephens, 482 F.3d 669,
4
673 (4th Cir. 2007). It is sufficient if the defendant’s
possession of the firearm was constructive, “meaning that he
exercised, or had the power to exercise, dominion and control
over the firearm.” United States v. Wilson, 484 F.3d 267, 282
(4th Cir. 2007).
Here, the jury found specifically that Esequiel
carried a firearm during and in relation to the conspiracy
charge, as well as one substantive charge (arising from a search
of Esequiel’s home). The jury further found that Esequiel
possessed a firearm in furtherance of the conspiracy charge and
two substantive charges (one arising from the search of his home
and the other involving the stop of his vehicle). Thus, the
jury found that Esequiel violated § 924(c) in five different
ways, any one of which would be sufficient to support his
conviction.
We easily find that the evidence was sufficient to
support Esequiel’s conviction. As to the conspiracy, one
witness testified that Esequiel began carrying a firearm
regularly during drug transactions after one particular drug
deal went bad. Another witness testified that, on the date of
the relevant substantive offenses, he saw Esequiel at his home
with a gun in his hand. This testimony alone, if believed, was
sufficient to support the jury’s verdict that Esequiel possessed
and carried a firearm for protection during the drug conspiracy,
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as well as during the transaction at his home. 1 Accordingly, we
affirm Esequiel’s conviction.
II.
Maria contends that the district court improperly
calculated the drug amount for which she was responsible.
Specifically, she asserts that she was wrongfully attributed
with amounts for which the conspiracy was responsible before she
arrived in the United States on October 15, 2005. 2 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. Randall, 171 F.3d 195, 210 (4th Cir.
1999).
Maria’s claim is without support. Her presentence
report clearly calculated the drug quantity based upon
controlled buys between “late 2005 and August of 2006” and the
seizure of contraband at her home. Accordingly, Maria has
failed to show clear error by the district court.
1
In addition, we hold that the evidence also supported the
jury’s verdict in all other respects concerning Esequiel’s
firearm conviction.
2
Maria also asserts that, prior to her arrival in the
United States, she was too young to be held responsible for the
conspiracy’s drug amounts.
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III.
Maria next asserts that the district court did not
provide a sufficient explanation for rejecting her request for a
lower sentence and for choosing the imposed sentence. In
evaluating the sentencing court’s explanation of a selected
sentence, we have consistently held that, while a district court
must consider the statutory factors and explain its sentence, it
need not explicitly reference 18 U.S.C. § 3553(a) (2006) or
discuss every factor on the record, particularly when the court
imposes a sentence within a properly calculated Guidelines
range. United States v. Johnson, 445 F.3d 339, 345 (4th Cir.
2006). But, at the same time, the district court “must make an
individualized assessment based on the facts presented.” Gall v.
United States,
552 U.S. 38, 50 (2007). Moreover, the district
court must state the individualized reasons that justify a
sentence, even when sentencing a defendant within the Guidelines
range. Rita v. United States,
551 U.S. 338, 356-57 (2007). The
reasons articulated by the district court for a given sentence
need not be “couched in the precise language of § 3553(a),” so
long as the “reasons can be matched to a factor appropriate for
consideration . . . and [are] clearly tied [to the defendant’s]
particular situation.” United States v. Moulden,
478 F.3d 652,
658 (4th Cir. 2007). Because Maria argued for a sentence below
the advisory Guidelines range in district court, the adequacy of
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the court’s explanation is reviewed for harmless error. See
United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010).
We conclude that the district court’s explanation in
this case was adequate. Maria argued for a below-Guidelines
sentence based upon the fact that she became involved in the
conspiracy through her husband and she did not know about his
dealings prior to her involvement. She also noted that she did
not have a criminal history and that she was very young. In
imposing a sentence at the bottom of the Guidelines range, the
district court noted the “serious and pernicious drug dealing
enterprise of which the defendant was fully aware.” The court
rejected Maria’s youth as a factor to support a variance, noting
that many drug dealers are the same age. The court then
discussed the § 3553(a) factors and found that they either
supported a Guidelines sentence or were neutral, at best, but
that none supported a variance. Because the district court
provided individualized reasoning for the within-Guidelines
sentence imposed, we reject Maria’s claim.
IV.
Finally, Maria contends that the district court should
have sua sponte severed her trial from that of Esequiel.
Specifically, she asserts that there was evidence regarding the
conspiracy that pre-dated her involvement and that no limiting
8
instructions were given. The failure to order severance sua
sponte is reviewed for plain error. United States v. Hart, 273
F.3d 363, 369-70 (3d Cir. 2001). In general, the decision as to
whether to sever a trial is left to the sound discretion of the
district court. Zafiro v. United States,
506 U.S. 534, 541
(1993).
Absent special circumstances, defendants indicted
together should be tried together. United States v. McManus, 23
F.3d 878, 883 (4th Cir. 1994). To succeed on appeal, a
defendant claiming that the district court erred by failing to
sua sponte order severance must make a colorable claim of
prejudice.
Id. Here, the evidence at trial established that
Maria and Esequiel conducted drug transactions together, and
many witnesses testified against both of them. While some of
the evidence may have been relevant to the charges against
Esequiel only, the evidence against Maria was overwhelming and
she does not argue otherwise. Thus, she is unable to show the
prejudice necessary to succeed on this claim.
V.
Based on the foregoing, we affirm Maria and Esequiel’s
convictions and Maria’s sentence. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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