UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5240
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MIGUEL GARCIA NUNEZ, a/k/a Cuasito,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:05-cr-00211-RLV-DCK-2)
Submitted: June 18, 2010 Decided: July 6, 2010
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Ann L. Hester, Angela Parrot, Cecilia Oseguera, Charlotte,
North Carolina, for Appellant. Edward R. Ryan, Acting United
States Attorney, Mark A. Jones, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A grand jury indicted Miguel Garcia Nunez with
conspiracy to possess with intent to distribute methamphetamine,
cocaine, and marijuana, in violation of 21 U.S.C.
§§ 841(b)(1)(A), (b)(1)(B), (b)(1)(C), (b)(1)(D), 846 (2006),
and possession with intent to distribute at least fifty grams of
methamphetamine (two counts), in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(B) (2006). After a four-day jury trial, the
jury found Nunez guilty of all charges. At sentencing, the
district court imposed a variance sentence (below the advisory
Guidelines range) of 270 months’ imprisonment on each count, to
run concurrently. On appeal, Nunez challenges the sufficiency
of the evidence to sustain the jury convictions as to the counts
that charged possession with intent to distribute
methamphetamine and argues that his sentence is unreasonable
because the district court plainly erred in sentencing him under
an improperly calculated advisory Guidelines range. We affirm.
We review de novo the district court’s denial of a
Fed. R. Crim. P. 29 motion for judgment of acquittal. United
States v. Reid, 523 F.3d 310, 317 (4th Cir.), cert. denied, 129
S. Ct. 663 (2008). A defendant challenging the sufficiency of
the evidence “bears a heavy burden.” United States v. Beidler,
110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks
omitted). The jury’s verdict must be sustained “if, viewing the
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evidence in the light most favorable to the prosecution, the
verdict is supported by substantial evidence.” United States v.
Smith, 451 F.3d 209, 216 (4th Cir. 2006) (internal quotation
marks omitted). Substantial evidence is “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.” Id. (internal quotation marks omitted).
In reviewing for substantial evidence, we consider both
circumstantial and direct evidence and allow the Government all
reasonable inferences from the facts shown to those sought to be
established. United States v. Harvey, 532 F.3d 326, 333 (4th
Cir. 2008). This court does not weigh evidence or review
witness credibility. United States v. Wilson, 118 F.3d 228, 234
(4th Cir. 1997). Rather, it is the role of the jury to judge
the credibility of witnesses, resolve conflicts in testimony,
and weigh the evidence. United States v. Manbeck, 744 F.2d 360,
392 (4th Cir. 1984). “Reversal for insufficient evidence is
reserved for the rare case where the prosecution’s failure is
clear.” Beidler, 110 F.3d at 1067 (internal quotation marks
omitted).
In his brief, Nunez claims the evidence at trial was
insufficient to support the jury’s verdict that he possessed
methamphetamine with the intent to distribute on March 3, 2005
(count five) and on May 9, 2005 (count nine). To convict a
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defendant of possession with the intent to distribute, the
government must prove: (1) possession of a narcotic controlled
substance; (2) knowledge of the possession; and (3) the intent
to distribute. United States v. Collins, 412 F.3d 515, 519 (4th
Cir. 2005). “A defendant is guilty of aiding and abetting if he
has knowingly associated himself with and participated in the
criminal venture.” United States v. Burgos, 94 F.3d 849, 873
(4th Cir. 1996) (internal quotation marks and citation omitted).
We have reviewed transcripts of the jury trial in light of the
parties’ arguments and conclude that sufficient evidence
supports the jury’s verdict as to both counts of possession with
intent to distribute methamphetamine.
Nunez also claims that his sentence is procedurally
and substantively unreasonable because of an alleged
arithmetical error made by the district court in calculating his
sentence. We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); see also United States v. Layton, 564 F.3d 330,
335 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009). In so
doing, the court first examines the sentence for “significant
procedural error,” including “failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) [(2006)] factors, selecting a sentence based on
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clearly erroneous facts, or failing to adequately explain the
chosen sentence. . . .” Gall, 552 U.S. at 51. The court then
“‘consider[s] the substantive reasonableness of the sentence
imposed.’” United States v. Evans, 526 F.3d 155, 161 (4th Cir.)
(quoting Gall, 552 U.S. at 51), cert. denied, 129 S. Ct. 476
(2008). If the sentence is within the Guidelines range, the
court applies a presumption of reasonableness. Rita v. United
States, 551 U.S. 338, 346-59 (2007) (upholding presumption of
reasonableness for within-Guidelines sentence).
Based on a total offense level of forty-one and a
criminal history category of I, the probation officer calculated
a Guidelines range of 324 to 405 months’ imprisonment. Nunez
argued for a downward variance based in part on an unwarranted
sentencing disparity among co-defendants.
In fashioning Nunez’s sentence, the district court
“credit[ed] the disparity argument to the extent of three levels
which would put defendant at a 39-1 level,” and the court
“sentence[d Nunez] accordingly, in that the highest sentence for
the others at this point [was] 135 months.” The district court
added that “nevertheless, defendant’s role and offense conduct
was such that the court’s sentence is justified in that he was a
major source of supply and the key source in this particular
grouping of defendants.” The court then sentenced Nunez, after
stating it had considered the sentencing factors under
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§ 3553(a), to 270 months’ imprisonment on each count, to run
concurrently.
On appeal, Nunez correctly notes that a three-level
reduction from offense level forty-one is offense level thirty-
eight, not thirty-nine as indicated by the district court.
Because Nunez did not object below, his claim is reviewed for
plain error. “To establish plain error, [Nunez] must show that
an error occurred, that the error was plain, and that the error
affected [his] substantial rights.” United States v. Muhammad,
478 F.3d 247, 249 (4th Cir. 2007). Even if Nunez satisfies
these requirements, “correction of the error remains within [the
court’s] discretion, which [the court] should not
exercise . . . unless the error seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation
omitted).
Here, while the court arguably committed error in
stating that the resulting offense level after a three-level
variance was thirty-nine rather than thirty-eight, we find the
error did not affect Nunez’s substantial rights. In the
sentencing context, an error affects substantial rights if the
defendant can show that the sentence imposed “was longer than
that to which he would otherwise be subject.” United States v.
Washington, 404 F.3d 834, 849 (4th Cir. 2005) (internal
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quotation marks and citation omitted); see also United States v.
Miller, 557 F.3d 910, 916 (8th Cir. 2009) (“In the sentencing
context, an error was prejudicial only if there is a reasonable
probability that the defendant would have received a lighter
sentence but for the error.”). Even assuming that the district
court erred in stating that the resulting offense level was
thirty-nine and not in stating that it intended to vary three
levels rather than two, Nunez cannot show that the court did not
intend to sentence him to 270 months. See United States v.
White, 405 F.3d 208, 221 (4th Cir. 2005) (expressing that in
conducting plain error review this court does not presume
prejudice but instead requires the defendant to demonstrate
actual prejudice).
In this case, we find Nunez cannot show actual
prejudice in the court’s imposition of a 270-month sentence
based on an arguably incorrectly calculated Guidelines range.
Nunez cannot show any substantial likelihood that his sentence
would have been any different had the district court computed a
lower advisory Guidelines range of imprisonment. Nunez does not
point to any non-speculative basis for concluding that the court
would not have arrived at the same sentence had it started at a
lower range. See United States v. Knight, ___ F.3d ___, 2010
WL 2220898 at *7 (4th Cir. June 4, 2010) (noting that, while it
may have been enough to satisfy Knight’s plain-error burden if
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the district court had explicitly connected the chosen sentence
to the advisory range, the court made no such statements and
therefore Knight’s assertions were pure speculation). Because
Nunez fails to show his substantial rights were affected, we
conclude he cannot establish plain error in the district court’s
presumably erroneous computation of the Guidelines range. We
further find no abuse of discretion in the chosen sentence.
For the foregoing reasons, we affirm Nunez’s
convictions and 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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