UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4180
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ALEXANDER JESUS SANTIAGO,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:09-cr-00299-REP-1)
Submitted: November 24, 2010 Decided: December 29, 2010
Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Carolyn V.
Grady, Assistant Federal Public Defender, Caroline S. Platt,
Research and Writing Attorney, Richmond, Virginia, for
Appellant. Angela Mastandrea-Miller, Assistant United States
Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alexander Jesus Santiago was indicted on one count of
possession with intent to distribute one hundred grams or more
of heroin, in violation of 21 U.S.C. § 841 (2006). Santiago
pleaded not guilty and proceeded to trial. Santiago was found
guilty, and the district court sentenced him to eighty-four
months’ imprisonment, at the bottom of Santiago’s U.S.
Sentencing Guidelines Manual (“USSG”) (2009) range.
Santiago appealed, and his counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967),
concluding that there are no meritorious grounds for appeal, but
asking us to review, first, whether the district court erred
when it applied a two-level firearm enhancement, and second,
whether the district court failed to sufficiently explain the
sentence imposed. Santiago submitted a pro se supplemental
brief arguing that he was deprived of the opportunity to
confront and cross-examine the forensic chemist who identified
the substances recovered as heroin, and that he received
ineffective assistance of counsel. We affirm.
Counsel first argues that the district court committed
plain error when it applied a two-level weapon enhancement
pursuant to USSG § 2D1.1(b)(1) because there was not a
sufficient connection between the weapon and the heroin.
Counsel notes that Santiago did not have a firearm on his person
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or in his vehicle when he was arrested, but that the firearm was
recovered from Santiago’s residence, where no drugs were found.
The Guidelines allow for a two-level increase in
offense level in a drug offense where “a dangerous weapon
(including a firearm) was possessed.” USSG § 2D1.1(b)(1).
Application note three to § 2D1.1 instructs that “[t]he
adjustment should be applied if the weapon was present, unless
it is clearly improbable that the weapon was connected with the
offense.” USSG § 2D1.1 cmt. n.3. This court reviews the
factual findings underpinning application of a sentence
enhancement for clear error; “if the issue turns primarily on
the legal interpretation of the guidelines, . . . review is de
novo.” United States v. Carter, 601 F.3d 252, 254
(4th Cir. 2010). In order to support the USSG § 2D1.1(b)(1)
firearm enhancement, “the Government must prove by a
preponderance of the evidence that the weapon was possessed in
connection with drug activity that was part of the same course
of conduct or common scheme as the offense of conviction.”
United States v. Manigan, 592 F.3d 621, 628-29 (4th Cir. 2010)
(internal quotation marks omitted).
Here, although Santiago was not carrying the firearm
when he was arrested and no drugs were recovered from Santiago’s
residence, baggies, digital scales, and a substance frequently
cut with drugs were recovered from the same room as the firearm.
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The Government was not required to prove “precisely concurrent
acts,” and was entitled to rely on circumstantial evidence,
including the type of firearm involved, to carry its burden.
Id. at 629 (internal quotation marks omitted). Under these
circumstances, the district court did not err when it found the
firearm sufficiently connected to the drug offense.
Next, counsel argues that Santiago’s sentence is
procedurally unreasonable because the district court failed to
provide an individualized assessment of the facts and arguments
relevant to sentencing. We review the reasonableness of a
sentence under an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of a sentence. Id.; United States v. Lynn, 592
F.3d 572, 575 (4th Cir. 2010). Here, only the procedural
reasonableness of Santiago’s sentence has been questioned.
A district court commits procedural error when it
“fail[s] to adequately explain the chosen sentence.” Lynn,
592 F.3d at 575 (quoting Gall, 552 U.S. at 51). While district
judges must provide a particularized assessment as to why the
sentence imposed is proper in each case, they need not
“robotically tick through [18 U.S.C.] § 3553(a)’s [(2006)] every
subsection.” United States v. Johnson, 445 F.3d 339, 345
(4th Cir. 2006). Moreover, “when a judge decides simply to
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apply the Guidelines to a particular case, doing so will not
necessarily require lengthy explanation.” Rita v. United
States, 551 U.S. 338, 356 (2007); see Lynn, 592 F.3d at 576.
The district court supplied an adequate explanation
for the within-Guidelines sentence imposed in this case. The
district court stated that, given Santiago’s criminal history
and the nature of his conduct, a sentence at the high end of the
Guidelines would be warranted to “give him enough prison time to
show respect for the law and learn respect for the law, to
protect the public, to deter him from further conduct, as well
as to send a message to the community that this kind of conduct
won’t be tolerated.” Nonetheless, the district court determined
that even the minimum, eighty-seven-month sentence under the
Guidelines would fulfill the objectives of 18 U.S.C. § 3553(a).
Although the district court’s explanation was not elaborate or
lengthy, it “provide[d] a rationale tailored to the particular
case at hand” and was adequate to permit “‘meaningful appellate
review.’” United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009) (quoting Gall, 552 U.S. at 50).
In his pro se supplemental brief, Santiago argues that
the introduction of the laboratory report identifying the heroin
violated the confrontation clause of the Sixth Amendment.
However, because the report was admitted pursuant to a
stipulation, Santiago has waived this argument.
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Santiago also claims that his counsel was
constitutionally ineffective by stipulating that the substance
recovered was heroin, by failing to object to a compromised
juror, and by failing to file a motion to suppress. Claims of
ineffective assistance of counsel are generally not cognizable
on direct appeal, unless counsel’s “ineffectiveness conclusively
appears from the record.” United States v. Baldovinos, 434 F.3d
233, 239 (4th Cir. 2006). In order to allow for the adequate
development of the record, Santiago must bring his claim in a
28 U.S.C.A. § 2255 (West Supp. 2010) motion. See United
States v. Baptiste, 596 F.3d 214, 216-17 n.1 (4th Cir. 2010).
In accordance with Anders, we have thoroughly reviewed
the entire record in this case and have found no meritorious
issues for appeal. We therefore affirm Santiago’s conviction
and sentence. We deny Santiago’s motion to substitute counsel.
This court requires that counsel inform Santiago, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Santiago requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Santiago.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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