UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5011
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICARDO SANCHEZ MENDOZA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:09-cr-00091-D-1)
Submitted: October 14, 2010 Decided: November 10, 2010
Before DAVIS and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed and remanded by unpublished per curiam opinion.
John Keating Wiles, CHESHIRE, PARKER, SCHNEIDER, BRYAN & VITALE,
Raleigh, North Carolina, for Appellant. George E. B. Holding,
United States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricardo Sanchez Mendoza pled guilty to one count of
conspiracy to possess with intent to distribute cocaine, in
violation of 21 U.S.C. § 846 (2006), and three counts of
distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1)
(2006). He pled not guilty to possession of a firearm in
furtherance of a drug trafficking offense, in violation of 18
U.S.C. § 924(c)(1)(A) (2006), and was found guilty by a jury.
The district court sentenced Mendoza to 144 months in prison.
On appeal, Mendoza alleges that the district court erred in
denying his motion to suppress evidence of out-of-court
photographic identifications and that he should have received a
downward adjustment in his sentence for acceptance of
responsibility. For the following reasons, we affirm Mendoza’s
conviction and sentence. We remand solely for the purpose of
correcting a clerical error in the judgment. See Fed. R. Crim.
P. 36.
Mendoza first argues that the district court erred in
denying his motion to suppress evidence of his out-of-court
photographic identifications by Rasheed Hakeem White. We review
de novo the district court’s legal conclusion as to whether the
identifications violated the Due Process Clause and its factual
findings for clear error. United States v. Saunders, 501 F.3d
384, 389 (4th Cir. 2007).
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The Due Process Clause protects against identification
procedures that are unnecessarily suggestive and conducive to
mistaken identifications. Neil v. Biggers, 409 U.S. 188, 198
(1972). A court must engage in a two-step inquiry in
determining whether identification testimony is admissible. See
United States v. Wilkerson, 84 F.3d 692, 695 (4th Cir. 1996).
First, the defendant must establish that the identification
procedure was impermissibly suggestive. See Manson v.
Brathwaite, 432 U.S. 98, 108-10 (1977); Satcher v. Pruett, 126
F.3d 561, 566 (4th Cir. 1997). If he meets this burden, then
the court must determine whether the identification was
nevertheless reliable under the totality of the circumstances.
Manson, 432 U.S. at 114. On appeal, this court is permitted to
assume the suggestiveness of an identification procedure and
move directly to the second, reliability step. Holdren v.
Legursky, 16 F.3d 57, 61 (4th Cir. 1994).
In determining reliability, the court considers the
following factors: (1) “the opportunity of the witness to view
the criminal at the time of the crime”; (2) “the witness’ degree
of attention”; (3) “the accuracy of the witness’ prior
description of the criminal”; (4) “the level of certainty
demonstrated by the witness” at the identification; and (5) “the
length of time between the crime” and the identification. Neil,
409 U.S. at 199-200; see Saunders, 501 F.3d at 391.
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Because we agree with the district court that White’s
identification of Mendoza was reliable under the Neil factors,
we do not address the question of the alleged suggestiveness of
the photographic identifications. White made unequivocal,
positive identifications of Mendoza after meeting with Mendoza
twice during drug transactions where a maximum of four people
were present. White’s description of Mendoza, made soon after
one of the transactions and prior to viewing the photograph, was
largely accurate. Under these circumstances, we hold that
White’s identification was reliable, and that this reliability
outweighs any “corrupting effect of the suggestive
identification itself.” * Manson, 432 U.S. at 114. Accordingly,
we conclude that that the district court did not err in denying
Mendoza’s motion to suppress.
Next, Mendoza asserts that he should have received a
downward adjustment for acceptance of responsibility. However,
a defendant generally is not eligible for the acceptance of
responsibility adjustment under U.S. Sentencing Guidelines
Manual (“USSG”) § 3E1.1 (2008) when he receives an upward
adjustment for obstruction of justice under USSG § 3C1.1.
*
Our confidence in the integrity of White’s identification
of Mendoza is bolstered by the fact that White was arrested near
Mendoza’s house and identified the location of the house, and
that cell phone records indicated contact between White and
Mendoza.
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United States v. Hudson, 272 F.3d 260, 263 (4th Cir. 2001). The
defendant has the burden of showing that his circumstances are
extraordinary. Id. Mendoza does not challenge the obstruction
of justice adjustment. We hold that Mendoza failed to
demonstrate extraordinary circumstances warranting application
of an acceptance of responsibility adjustment.
Accordingly, we affirm Mendoza’s conviction and
sentence. We note, however, that the judgment entered by the
district court reflects that Mendoza was convicted by a jury on
all counts. In fact, Mendoza pleaded guilty to Counts One, Two,
Four and Five, and was found guilty by a jury after pleading not
guilty to Count Three. We remand for the purpose of correcting
this clerical error. See Fed. R. Crim. P. 36. 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 AND REMANDED
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