United States v. Genaro Flores-Duran

FILED: September 13, 2013

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
________________

No. 11-5167
________________

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

GENARO FLORES-DURAN, a/k/a Genaro Flores, a/k/a Carlos
Perez-Diaz, a/k/a Carlos Perez,

Defendant – Appellant.

O R D E R

The Court amends its opinion filed July 1, 2013, as

follows:

On the cover sheet, attorney information section – in

the "ARGUED" section, the name "Kristine L. Fritz" is

substituted for the name "Jennifer P. May-Parker." In the "ON

BRIEF" section, the name "Jennifer P. May-Parker" is substituted

for the name "Kristine L. Fritz."

For the Court – By Direction

/s/ Patricia S. Connor
Clerk
 UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-5167

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GENARO FLORES-DURAN, a/k/a Genaro Flores, a/k/a Carlos
Perez-Diaz, a/k/a Carlos Perez,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:10-cr-00095-FL-1)

Argued: May 14, 2013 Decided: July 1, 2013

Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Geoffrey Wuensch Hosford, HOSFORD & HOSFORD, P.C.,
Wilmington, North Carolina, for Appellant. Kristine L. Fritz,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee. ON BRIEF: Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Appellant Genaro Flores-Duran and co-defendants Salvador

Flores-Duran (Salvador), Jorge Albarran-Rivera (Jorge), and

Zacharias Espinoza were charged in a two-count superseding

indictment with conspiracy to distribute and possess with intent

to distribute five kilograms or more of cocaine, in violation of

21 U.S.C. § 846 (Count One), and aiding and abetting each other

in the possession of firearms in furtherance of a drug

trafficking offense, in violation of 18 U.S.C. §§ 924(c) and 2

(Count Two). A jury convicted Flores-Duran of both counts. The

district court subsequently sentenced him to 292 months’

imprisonment on Count One and sixty months’ imprisonment, to run

consecutively, on Count Two, for a total of 352 months’

imprisonment. Thereafter, Flores-Duran filed a timely notice of

appeal in which he raises various arguments as to why we ought

to grant him a new trial or, in the alternative, a new

sentencing hearing. We have jurisdiction over this appeal

pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

Discerning no reversible error, we affirm.

I.

We set forth a brief overview of the facts of this case

here. We provide more detailed facts, as relevant to the

appellate issues, below.

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 In 2009, federal and state law enforcement agencies from

South Carolina and North Carolina discovered a group of Mexican

nationals involved in a drug trafficking conspiracy dealing in

large quantities of cocaine in both South Carolina and North

Carolina. The multi-year conspiracy lasted until August 11,

2010.

The investigation established that Flores-Duran and his

brother, Salvador, were the leaders of the conspiracy. Other

participants included, but were not limited to, Jorge, Espinoza,

Luis Cesar-Rosas, Esteban Rivera, and Concepcion Villegas-

Flores.

On August 11, 2010, Deputy Jonah Jenkins of the Jasper

County Sheriff’s Department stopped Flores-Duran for following

another vehicle too closely, in violation of South Carolina

Code Section 56-5-1930(a). Flores-Duran consented to a search

of his vehicle. During the search, Jenkins found a white

powder, which, after a field test, showed evidence of cocaine.

Moreover, Jenkins’s K-9 partner alerted on some bags in the

trunk of Flores-Duran’s car. Thereafter, Jenkins arrested

Flores-Duran.

The grand jury returned a superseding indictment against

Flores-Duran, Salvador, Jorge, and Espinoza on March 10, 2011,

charging them with conspiracy to distribute and possess with

intent to distribute five kilograms or more of cocaine, in

violation of 21 U.S.C. § 846 (Count One), and possession of

4
firearms in furtherance of a drug trafficking offense and aiding

and abetting, in violation of 18 U.S.C. §§ 924(c) and 2 (Count

Two).

At trial, the jury convicted Flores-Duran of both counts.

The district court subsequently sentenced him to 292 months’

imprisonment on Count One and sixty months’ imprisonment, to run

consecutively, on Count Two, for a total of 352 months’

imprisonment. This appeal followed.

II.

First, Flores-Duran contends that the district court abused

its discretion by failing to dismiss the charges against him on

account of the government’s violation of the magistrate judge’s

discovery order. Rule 16(d)(2) of the Federal Rules of Criminal

Procedure provides the district court with broad discretion to

fashion the appropriate remedy for a party’s discovery

violation. Yet, its discretion is guided by “a discrete set of

traditionally judicial inquiries concerning ‘the reasons for the

government’s delay and whether it acted intentionally or in bad

faith; the degree of prejudice, if any, suffered by the

defendant; and whether any less severe sanction will remedy the

prejudice and the wrongdoing of the government.’” United States

v. Gonzales-Flores, 701 F.3d 112, 116 (4th Cir. 2012) (quoting

United States v. Hastings, 126 F.3d 310, 317 (4th Cir. 1997)).

5
 Flores-Duran maintains that “[d]uring the week prior to

trial, [that was then set for April 2011,] the [g]overnment sent

over one thousand pages of additional discovery, the bulk of

which was due no later than fourteen days prior to trial.”

Based on the discovery violation, Flores-Duran moved to dismiss

the indictment. He also sought, as alternatives, to exclude

certain witnesses or to continue the trial. The district court

continued the trial to May 2011.

The government concedes that it failed to provide all of

the discovery materials that it was obligated to provide within

the time period required by the magistrate judge. According to

the government, however, there were several reasons for the

failure, including government counsel’s misreading of the

discovery order; a power outage caused by a large storm at the

courthouse in Raleigh, where the government’s offices are

located; and the government’s last minute decision to present

certain evidence.

Flores-Duran argues that he was prejudiced by the

government’s late disclosure in two ways. “First, the

[g]overnment’s action delayed the trial of his case. There can

be no reason for the late release of over one thousand pages of

documents other than to ensure a continuance of the trial.”

But, this suggests bad faith on behalf of the government, and

neither we nor the district court have found any. Instead, we,

6
like the district court, find the government’s explanation

plausible. As explained by the district court:

Well, I have three defendants, each of whom,
through his attorney, indicates that he is not
prepared to go forward to trial. And, what’s been
described, with the overlay of a storm, is somewhat of
a perfect storm. The government’s decision not to
prepare for this trial until the eve of it, based on
workload issues and other matters, and that
preparation resulted in a determination that a number
of other documents needed to be disclosed.

And then there was a storm, and there were issues
arising, and the disclosure was suggested as being
late in an e-mail to which no defendant responded.

There was some effort on the part of all counsel,
it appears, to be ready today, despite the volume of
material disclosed last week. And I understand none
of you is ready for trial.

Each of you seeks a continuance of between three
weeks and a month, and I’m going to allow that, with
concern, too, as we have approximately 50 people ready
to submit to the jury processes. And the Court will
be explaining to them that their services cannot be
received today.

Flores-Duran also asserts that he was prejudiced because

“the continuance afforded the [g]overnment more time to locate

Alan Pickering who identified Genaro Flores-Duran as the man who

paid to rent his trailer.” We find this argument unpersuasive,

and will discuss it in more detail in the next section.

As already stated, we find the reasons given by the

government for the delay to be credible. And, we find no bad

faith. Flores-Duran would have been greatly prejudiced had the

district court not provided some sort of remedy for the

government’s discovery violation. That said, we are satisfied

7
that the district court’s choice of a continuance, as opposed to

outright dismissal, cured any prejudice and was not an abuse of

discretion.

III.

Flores-Duran maintains that the district court also abused

its discretion in not excluding Pickering’s testimony and

related documents based on the government’s late disclosure that

it intended to call him as a witness. “[D]ecisions regarding

whether a witness should be allowed to testify are generally

reviewed for abuse of discretion.” United States v. Fulks, 454

F.3d 410, 421 (4th Cir. 2006).

Pursuant to Rule 16(a)(1)(E) of the Federal Rules of

Criminal Procedure,

Upon a defendant’s request, the government must permit
the defendant to inspect and to copy or photograph
books, papers, documents, data, photographs, tangible
objects, buildings or places, or copies or portions of
any of these items, if the item is within the
government’s possession, custody, or control and:

(i) the item is material to preparing the defense;

(ii) the government intends to use the item in its
case-in-chief at trial; or

(iii) the item was obtained from or belongs to the
defendant.

The obligation to provide these materials is ongoing:

A party who discovers additional evidence or material
before or during trial must promptly disclose its
existence to the other party or the court if:

8
 (1) the evidence or material is subject to discovery
or inspection under this rule; and

(2) the other party previously requested, or the court
ordered, its production.

Fed. R. Crim. P. 16(c).

When replacement counsel took responsibility for this case

in mid-May, approximately two weeks before the case was to go to

trial, she requested that law enforcement agents find the

landlord of the second trailer in Loris, South Carolina, which

Flores-Duran rented and used as a stash house for his drug

operation. Authorities recovered firearms, over a kilogram of

cocaine, and over one-hundred thousand dollars in United States

currency when they raided the trailer. Flores-Duran had earlier

used another trailer in Loris as a stash house. Government’s

counsel informed defense counsel that she had made this request.

On Friday afternoon, May 20, 2011, which was the Friday

before trial was to begin, the agents met with the landlord,

Alan Pickering. At that meeting, Pickering gave the agents

documents related to the rental of the second trailer and made

an out-of-court identification of Flores-Duran. The next day,

counsel for the government faxed the documents to counsel for

Flores-Duran but failed to telephone to ensure receipt. As it

turned out, Flores-Duran’s counsel did not receive the documents

until Monday—what was to be the first day of trial. The

district court was troubled by the late disclosure but decided

not to exclude the testimony. Instead, it continued the trial

9
for a month. This was proper, and Flores-Duran does not argue

otherwise in his brief.

According to Flores-Duran, however, it was the April 2011

continuance that prejudiced him such that the district court

should not have allowed Pickering to testify. Flores-Duran

avows, “Without that continuance, the [g]overnment would not

have had Alan Pickering available as a witness. Genaro Flores-

Duran was prejudiced by both the continuance and also by the

denial of the motion to exclude Mr. Pickering’s documents, photo

identification, and his other testimony.” We make two

observations. First, there is nothing in the record to suggest

that the government did anything to delay the trial so that

Pickering could be found. In fact, there was no attempt to find

Pickering until after the April 2011 continuance had been

ordered. And second, just as the continuance allowed the

government additional time to locate a witness favorable to its

case, Flores-Duran had additional time to locate witnesses that

might have been favorable to his case, as well.

For these reasons, we conclude that the district court did

not abuse its discretion in its refusal to exclude Pickering’s

testimony and related documents from Flores-Duran’s trial.

IV.

Flores-Duran next challenges the district court’s decision

to deny his motion to exclude Pickering’s out-of-court

10
photographic identification of him. We review “factual

particulars of [the] identification . . . for clear error.”

United States v. Saunders, 501 F.3d 384, 389 (4th Cir. 2007).

And, “[w]e review de novo the court’s legal conclusion as to

whether the identification violated the Due Process Clause.”

Id.

The defendant has the burden of establishing that the out-

of-court identification was infirm. Id. “The consideration of

whether the identification testimony is admissible proceeds in

two steps.” Id. First, the defendant must demonstrate the

identification process was impermissibly suggestive. Id. If he

meets this burden, then the court must consider “whether the

identification was nevertheless reliable in the context of all

of the circumstances.” Id. at 389-90.

“A witness’s out-of-court photo identification that is

unreliable and therefore inadmissible on due process grounds

also renders as inadmissible his subsequent in-court

identification.” Id. at 390. “In this circumstance, as the

Supreme Court has said, the witness ‘is apt to retain in his

memory the image of the photograph rather than the person

actually seen, reducing the trustworthiness of subsequent . . .

courtroom identification.’” Id. (quoting Simmons v. United

States, 390 U.S. 377, 383-84 (1968)).

According to the testimony at the district court hearing on

this matter, Officer William Kitelinger, a corporal with the

11
Myrtle Beach Police Department, met Pickering at Colonial Mall

between Myrtle Beach and North Myrtle Beach at approximately

4:00 PM on May 20, 2011. According to his testimony, he

showed [Pickering] three photographs, asked him if he
recognized anybody in any of the photographs. He
immediately identified one person in the photograph.
I asked him who that person was and he said that was
the person that gave him the money for the rent or was
present when the trailer was rented. I had him then
turn over the picture and write on the back who that
person was to him. Then he gave me a photocopy of a
receipt for the rent for the trailer. I then
collected up those items and left.

Kitelinger asserted that he failed to give the cautionary

instruction normally given for a photo lineup because “it wasn’t

in [his] opinion a photo lineup. The photos given were people

that we had already identified, so it wasn’t standard.”

Further, he agreed that, in a standard lineup, there are

normally six, not three, photographs shown. In Pickering’s

testimony at the hearing, he stated that he felt no pressure to

choose one of the photographs and did not feel rushed, although

Kitelinger seemed as if he was in a hurry.

According to Flores-Duran, “[t]he officer gave Mr.

Pickering no guidance when the Myrtle Beach Police Department

officers routinely provide cautionary instructions to people

viewing photos. The method employed was impermissibly

suggestive, and as such, the district court erred in allowing

admission of the out-of-court identification.” But we agree

with the district court: It “had an opportunity to observe both

witnesses and hear what [they] each had to say in response to
12
[counsel’s] questions. [Although] it certainly seems it was a

brief encounter and not a very involved one, [Pickering’s]

identification of [Flores-Duran] may be allowed into evidence as

it was not an unduly suggestive process.”

Because the identification was not impermissibly

suggestive, there is no reason for us to consider whether it was

reliable. Consequently, we find no error in the district

court’s decision to deny Flores-Duran’s motion to exclude

Pickering’s out-of-court photographic identification of him.

V.

Next, Flores-Duran complains that the district court erred

in not granting his motion for judgment of acquittal on the gun

charge. Our review of the district court’s denial of a motion

for judgment of acquittal is de novo. United States v. United

Med. & Surgical Supply Corp., 989 F.2d 1390, 1401 (4th Cir.

1993). In making such a review, we must decide “whether there

is substantial evidence (direct or circumstantial) which, taken

in the light most favorable to the prosecution, would warrant a

jury finding that the defendant was guilty beyond a reasonable

doubt.” United States v. MacCloskey, 682 F.2d 468, 473 (4th

Cir. 1982).

According to Flores-Duran, there is no substantial evidence

to support a finding that he possessed a firearm in furtherance

of the drug conspiracy charged in Count One of the superseding

13
indictment. But, “[a] defendant may be convicted of a § 924(c)

charge on the basis of a coconspirator’s use of a gun if the use

was in furtherance of the conspiracy and was reasonably

foreseeable to the defendant.” United States v. Wilson, 135

F.3d 291, 305 (4th Cir. 1998). There are many ways in which a

firearm might be used to further or advance drug trafficking:

For example, a gun could provide a defense against
someone trying to steal drugs or drug profits, or it
might lessen the chance that a robbery would even be
attempted. Additionally, a gun might enable a drug
trafficker to ensure that he collects during a drug
deal. And a gun could serve as protection in the
event that a deal turns sour. Or it might prevent a
transaction from turning sour in the first place.

United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002).

There is considerable evidence in the record to support

Flores-Duran’s §§ 924(c) and 2 conviction. For instance, there

were approximately thirteen guns in the first Loris trailer that

Flores-Duran rented for selling cocaine. As Esteban Rivera, one

of Flores-Duran’s co-conspirators, testified at trial, the guns

were for him and others “to defend [themselves] from people who

may want to come in and rob or if there were any problems

between [the customers] or the police.” When Rivera and his

coconspirators moved into the second Loris trailer that Flores-

Duran rented, they took the guns with them. Asked where the

guns came from, Rivera stated that Flores-Duran “bought them

from this guy that came one time. It was a Mexican guy.” He

also attested that on a couple of occasions he and Flores-Duran

tried out one of the guns.
14
 Moreover, Luis Cesar-Rosas testified that on March 24,

2010, when he purchased ten ounces of cocaine from Flores-Duran

at the second Loris trailer, “There was a gun on the countertop,

it was right where you walk in the door. . . . I recall I did

see it on the first time I was there. He had it on his

waistline but the other time it was laying on the countertop.”

The record is replete with many more examples that we need

not enumerate here. Suffice it to say, substantial evidence

supports Flores-Duran’s § 924(c) and 2 conviction.

VI.

Flores-Duran also argues that the district court erred in

denying his motion to suppress evidence obtained during the

August 11, 2010, traffic stop in Jasper County, South Carolina.

Although he consented to the search of his vehicle, he avers

that the traffic stop itself was improper. Ordinarily, on a

motion to suppress we review a district court’s legal

conclusions de novo and its factual findings for clear error.

See Ornelas v. United States, 517 U.S. 690, 699 (1996). In

doing so, we construe the evidence in the light most favorable

to the prevailing party below. United States v. Perkins, 363

F.3d 317, 320 (4th Cir. 2004). But when, as here, the

magistrate judge makes a recommendation on how to dispose of the

motion and a party fails to timely object, that party waives

appellate review of the district court’s decision to adopt the

15
recommendation. Wright v. Collins, 766 F.2d 841, 845 (4th Cir.

1985).

A magistrate judge considered Flores-Duran’s motion to

suppress and issued a memorandum and recommendation to the

district court suggesting that it deny the motion. In his

recommendation, the magistrate judge noted that the parties

would have fourteen days to file any objections and declared

that failure to file any objections by a party would bar that

party from seeking appellate review. Still, Flores-Duran failed

to file any objections to the memorandum and recommendation.

Thus, Flores-Duran waived appellate review. The district court

subsequently adopted the recommendation and denied Flores-

Duran’s motion to suppress.

Alternatively, even assuming that Flores-Duran preserved

this issue for appeal, we would still hold that the district

court did not err in finding that Deputy Jenkins had probable

cause to stop Flores-Duran for a violation of South Carolina

Code Section 56-5-1930(a). Pursuant to Section 56-5-1930(a),

“The driver of a motor vehicle shall not follow another vehicle

more closely than is reasonable and prudent, having due regard

for the speed of such vehicles and the traffic upon and the

condition of the highway.” “As a general matter, the decision

to stop an automobile is reasonable where the police have

probable cause to believe that a traffic violation has

occurred.” United States v. Sowards, 690 F.3d 583, 588 (4th

16
Cir. 2012) (quoting Whren v. United States, 517 U.S. 806, 810

(1996)) (internal quotation marks omitted).

The evidence the government presented at the hearing on

this matter demonstrated the following: In deciding whether a

vehicle is following another vehicle too closely, Deputy Jenkins

employs a rule of thumb that a safe following distance is

approximately one car length for every ten miles per hour that

the vehicle is traveling. In this instance, Deputy Jenkins

observed Flores-Duran driving seventy miles per hour within just

one car length of a tow truck as he approached an active

construction site.

Flores-Duran argues that he was stopped for a violation of

Deputy Jenkins’ rule of thumb and not Section 56-5-1930(a).

Thus, according to Flores-Duran, Deputy Jenkins did not have

probable cause to stop him. We are unconvinced. Because Deputy

Jenkins thought that Flores-Duran was following the tow truck

“more closely than [was] reasonable and prudent,” S.C. Code

Ann. § 56-5-1930(a), he had probable cause to initiate a stop of

Flores-Duran’s vehicle. Hence, because Jenkins had probable

cause to initiate the stop, and Flores-Duran consented to the

search of his vehicle, the district court properly denied

Flores-Duran’s motion to suppress the evidence gathered as a

result of the stop.

VII.

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 As to sentencing, Flores-Duran claims that the district

court erred in overruling his objection to the four-point

enhancement that it ultimately imposed pursuant to U.S.S.G.

§ 3B1.1(a). When deciding whether the district court properly

applied the Sentencing Guidelines, “we review the court’s

factual findings for clear error and its legal conclusions de

novo.” United States v. Allen, 446 F.3d 522, 527 (4th Cir.

2006). The district court’s decision concerning a role

adjustment is a factual determination, reviewable for clear

error. United States v. Kellam, 568 F.3d 125, 147-48 (4th Cir.

2009). “A finding of fact is clearly erroneous when, ‘although

there is evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm conviction

that a mistake has been committed.’” In re Mosko, 515 F.3d 319,

324 (4th Cir. 2008) (quoting United States v. U.S. Gypsum Co.,

333 U.S. 364, 395 (1948)).

The district court applied a four-level enhancement for

Flores-Duran’s leadership role in the drug conspiracy. Flores-

Duran argues, however, that the evidence establishes that he

engaged in only buyer-seller relationships.

Pursuant to Section 3B1.1(a) of the Sentencing Guidelines,

the district court is to impose a four-level enhancement to a

defendant’s sentence “[i]f the defendant was an organizer or

leader of a criminal activity that involved five or more

participants or was otherwise extensive.” In determining

18
whether one is a leader or organizer, the district court should

consider the following factors:

the exercise of decision making authority, the nature
of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense,
the nature and scope of the illegal activity, and the
degree of control and authority exercised over others.
U.S.S.G. § 3B1.1 cmt. n.4.

As detailed in the Addendum to the Presentence Report and

relied upon by the district court,

Flores-Duran engaged in a conspiracy to distribute
cocaine from 2004 to August 11, 2010. Specifically,
in 2004, [Flores-Duran] relocated from Florida to
North Carolina and began selling cocaine with his
brother, Salvador Flores-Duran; however, a short time
later, the brothers began obtaining cocaine separately
but from the same sources, and utilizing several of
the same co-conspirators in their drug distribution
activities. To further the conspiracy, Genaro Flores-
Duran also recruited individuals to pick up and
distribute cocaine for him, established stash houses
to store and distribute cocaine, and employed an
individual to count and package money brought into one
of the stash houses. Specifically, Concepcion
Villegas[-]Flores was paid a total of $10,000 to
travel to Georgia on at least seven occasions to pick
up several kilograms of cocaine for Genaro Flores-
Duran and Salvador Flores-Duran. Additionally, Luis
[Cesar-]Rosas sold over 250 grams of cocaine to a
confidential informant for [Flores-Duran]. Lastly,
Genaro Flores-Duran employed Esteban Rivera to count
and package money brought into his (Genaro Flores-
Duran’s) stash house located in Loris, South Carolina.

Concerning the district court’s imposition of the

enhancement, having carefully reviewed the entire record before

us, we are not “left with the definite and firm conviction that

a mistake has been committed.” In re Mosko, 515 F.3d at 324

(quoting U.S. Gypsum Co., 333 U.S. at 395) (internal quotation
19
marks omitted). Hence, we find no clear error in the district

court’s decision to employ the four-level enhancement to Flores-

Duran’s sentence.

VIII.

Finally, Flores-Duran contests the district court’s

decision denying his motion to dismiss the gun charge for lack

of venue. “[W]e review the district court’s determination of

venue de novo.” United States v. Wilson, 262 F.3d 305, 320 (4th

Cir. 2001).

Flores-Duran makes no real argument here, except to state

that “[he] seeks to preserve this issue on appeal.” In fact, at

oral argument, his counsel agreed that the government cited the

appropriate law on this issue. Thus, we only briefly address

this issue here.

“In determining where a crime was committed for purposes of

venue, ‘a court must initially identify the conduct constituting

the offense (the nature of the crime) and then discern the

location of the commission of the criminal acts.’” United

States v. Robinson, 275 F.3d 371, 378 (4th Cir. 2001) (quoting

United States v. Rodriguez-Moreno, 526 U.S. 275, 279 (1999)).

The underlying offense here is a drug conspiracy. Venue is

proper in a § 942(c) prosecution in any district where the

underlying offense occurred. Rodriguez-Moreno, 526 U.S. at 281.

Several overt acts in furtherance of the conspiracy occurred in

20
the Eastern District of North Carolina, including, but not

limited to, selling cocaine, receiving deliveries of cocaine,

and recruiting or attempting to recruit other accomplices.

Thus, because the underlying offense occurred in the Eastern

District of North Carolina, venue was proper in that district.

Hence, the district court did not err in denying Flores-Duran’s

motion to dismiss for lack of venue.

IX.

For the foregoing reasons, we affirm Flores-Duran’s

conviction and sentence.

AFFIRMED

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