United States v. Cortez

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4784

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

PAULINO CASTRO CORTEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00475-NCT-2)

Submitted: September 25, 2008 Decided: November 5, 2008

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Wayne Buchanan Eads, Raleigh, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, David P. Folmar, Jr.,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Paulino Castro Cortez was found guilty for possessing

with intent to distribute five kilograms or more of cocaine. The

jury found him not guilty, however, for possessing a firearm in

furtherance of a drug trafficking crime under 18 U.S.C.A.

§ 924(c)(1)(A)(i) (West Supp. 2008). He was sentenced to 151

months of imprisonment. On appeal, Cortez alleges the district

court erred by giving him a two-level enhancement under U.S.

Sentencing Guidelines Manual § 2D1.1(b)(1) (2007), for possessing

a dangerous weapon (here a pistol), in light of the jury’s verdict

on the § 924(c) charge. For the reasons that follow, we affirm.

Cortez concedes on appeal that we review this issue for

plain error, as trial counsel failed to raise this issue below.*

See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725,

731-32 (1993); United States v. Beasley, 495 F.3d 142, 148 (4th

Cir. 2007), cert. denied, 128 S. Ct. 1471 (2008). Without the two-

level enhancement, Cortez’s advisory sentencing range would have

been 121-151 months.

Cortez’s argument fails as a matter of law. In United

States v. Watts, 519 U.S. 148 (1997), the Supreme Court held that

“a jury’s verdict of acquittal does not prevent the sentencing

court from considering conduct underlying the acquitted charge, so

*
Trial counsel initially filed written objections to the
enhancement but he and Cortez abandoned the argument at the
sentencing hearing. (JA 274-75).

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long as that conduct has been proved by a preponderance of the

evidence.” Id. at 157; see United States v. Hunter, 19 F.3d 895,

897 (4th Cir. 1994) (upholding firearm enhancement where defendant

was acquitted of § 924(c) firearm charge). Accordingly, we affirm

Cortez’s sentence. 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

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