UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4873
OLIVERIA ESPINOZA SANCHEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-02-146)
Submitted: May 20, 2003
Decided: June 12, 2003
Before WIDENER, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Paul M. James, III, STOWERS & JAMES, P.A., Winston-Salem,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Michael A. DeFranco, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. SANCHEZ
OPINION
PER CURIAM:
Oliveria Espinoza Sanchez pled guilty to possession of a firearm
by an illegal alien in violation of 18 U.S.C. § 922(g)(5) (2000), and
received a sentence of forty-eight months imprisonment. Sanchez
appeals her sentence, alleging that the district court erred in consider-
ing evidence relating to dismissed counts that was proved by a pre-
ponderance of the evidence, and clearly erred in finding that she
possessed the firearm in connection with drug trafficking. We affirm.
On April 5, 2002, Miguel Cortez Jaimes, Sanchez’s husband,
agreed to deliver a kilogram of cocaine to a federal undercover agent
posing as a customer of Sanchez’s brother, Manuel Espinoza San-
chez. The agent also promised to bring with him $40,000 owed to
Manuel. The same day, Sanchez, her husband, and their small child
drove from their home in Dobson, North Carolina, to Winston-Salem
to meet the agent in the parking lot of a mall. Miguel spoke with the
agent several times on his cell phone before he parked their van at the
mall. Miguel was arrested shortly afterward, a little distance from the
van, with his young son. As Miguel was detained, an agent
approached the van with his gun drawn. He opened the passenger side
door and in Spanish told Sanchez, who was in the front passenger
seat, to put her hands up. Sanchez put her right hand up, but dropped
her left hand, drawing the agent’s attention to a brick-shaped object
wrapped in opaque plastic that was partially concealed beneath her
left thigh. The agent then pulled Sanchez out of the van. As he did
so, the brick fell to the floor of the car. It proved to be 977 grams of
cocaine. Sanchez’s purse was found on the floor of the van between
the driver’s and passenger’s seats; it contained a loaded Ruger .40 cal-
iber pistol.
Sanchez was charged with conspiracy to distribute cocaine, posses-
sion of 977 grams of cocaine with intent to distribute, carrying a fire-
arm during and in relation to a drug trafficking crime, and possession
of a firearm by an illegal alien. She pled guilty to the last count only,
but was held accountable for sentencing purposes for the drug offense
through the operation of the cross reference in U.S. Sentencing Guide-
lines Manual § 2K2.1(c)(1)(A) (2001). The cross reference provides
UNITED STATES v. SANCHEZ 3
that, if the defendant used or possessed a firearm in connection with
the commission or attempted commission of another offense, USSG
§ 2X1.1 should be applied with respect to the other offense if the
resulting offense level is greater than that achieved under § 2K2.1.
Section 2X1.1 provides for use of the base offense level for the sub-
stantive offense (in this case, USSG § 2D1.1), and any applicable
adjustments. The district court overruled Sanchez’s objection to appli-
cation of the cross-reference, but reduced her offense level after find-
ing that she had a minor role in the conspiracy.
On appeal, Sanchez contends first that the district court erred in
determining her sentence based on evidence relating to the dismissed
counts. She argues that an enhancement based on conduct from dis-
missed charges, which is proved only by a preponderance of the evi-
dence at sentencing, results in a violation of due process according to
the principles set out in Ring v. Arizona, 536 U.S. 584 (2002),
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Jones v. United
States, 526 U.S. 227 (1999), even though the enhancement did not
increase the statutory maximum penalty for her offense of conviction.
Sanchez concedes that her position is not supported by the law of this
Circuit. See, e.g., United States v. Kinter, 235 F.3d 192, 201 (4th Cir.
2000). We conclude that the issue she has raised is meritless.
Second, Sanchez contests the district court’s factual finding that
she possessed the pistol seized from her purse in connection with drug
trafficking. She maintains that the only evidence that arguably con-
nected her to the cocaine was the fact that it was under or against her
leg when the agent accosted her and that she moved her left hand in
its direction when ordered to put her hands up. She argues that this
evidence is insufficient because the cocaine was wrapped in opaque
plastic and not clearly discernable through the packaging. We review
the district court’s factual determination for clear error. United States
v. Hudson, 272 F.3d 260, 263 (4th Cir. 2001).
We conclude that the district court did not clearly err in finding that
Sanchez was aware of the cocaine transaction in progress, given that
her husband was conducting it on behalf of her brother, that she
accompanied her husband, that her husband spoke with the under-
cover agent several times on his cell phone in her presence, and that
he finally left her in the van with the cocaine and a loaded gun. These
4 UNITED STATES v. SANCHEZ
circumstances permitted the court to infer that Sanchez was protecting
the cocaine until the transaction was completed. Her husband’s asser-
tions to the contrary at the sentencing hearing were rejected as not
credible by the district court. Findings based on the credibility of wit-
nesses are given great deference. United States v. Hassanzadeh, 271
F.3d 574, 580 (4th Cir. 2001).
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED