UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4258
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
OSCAR HERNANDEZ,
Defendant - Appellant.
No. 10-4276
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAIME PUENTE-VAZQUEZ,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:08-cr-00027-RLV-DCK-4;
5:08-cr-00027-RLV-DCK-7)
Submitted: July 8, 2011 Decided: July 22, 2011
Before KING, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Matthew Collin Joseph, Charlotte, North Carolina; Kenneth D.
Snow, COBLE & SNOW, LLP, Charlotte, North Carolina, for
Appellants. Anne M. Tompkins, United States Attorney, Richard
Lee Edwards, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Oscar Hernandez was convicted by a jury of conspiracy
to possess with intent to distribute cocaine, in violation of 21
U.S.C. §§ 841(a)(1), 846 (2006), attempted possession with
intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1), 846,
possessing a firearm in furtherance of a drug trafficking crime,
in violation of 18 U.S.C. § 924(c) (2006), and possession of a
firearm by an illegal alien, in violation of 18 U.S.C.
§ 922(g)(5). The district court sentenced Hernandez to 228
months in prison. Jaime Puente-Vazquez was convicted by the
same jury of conspiracy to possess with intent to distribute
cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846, and
possession with intent to distribute cocaine, in violation of 21
U.S.C. § 841(a). The district court sentenced Puente-Vazquez to
151 months in prison. Hernandez and Puente-Vazquez timely
appeal. We affirm.
Both Hernandez and Puente-Vazquez challenge the
sufficiency of the evidence on each count on which they were
convicted. Additionally, Puente-Vazquez challenges his
sentence, claiming that the district court improperly applied an
enhancement for obstruction of justice pursuant to U.S.
Sentencing Guidelines Manual (“USSG”) § 3C1.1 (2009).
This court reviews a district court’s decision to deny
a Fed. R. Crim. P. 29 motion for a judgment of acquittal de
3
novo. United States v. Smith, 451 F.3d 209, 216 (4th Cir.
2006). A defendant challenging the sufficiency of the evidence
faces a heavy burden. United States v. Beidler, 110 F.3d 1064,
1067 (4th Cir. 1997). The verdict of a jury must be sustained
“if, viewing the evidence in the light most favorable to the
prosecution, the verdict is supported by ‘substantial
evidence.’” Smith, 451 F.3d at 216 (citations 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 and citation omitted).
Furthermore, “[t]he jury, not the reviewing court, weighs the
credibility of the evidence and resolves any conflicts in the
evidence presented.” Beidler, 110 F.3d at 1067 (internal
quotation marks and citation omitted). “Reversal for
insufficient evidence is reserved for the rare case where the
prosecution’s failure is clear.” Id. (internal quotation marks
and citation omitted).
Because this case involved a conspiracy charge under
21 U.S.C. § 846, the Government was required to prove: (1) an
agreement between two or more persons to engage in conduct that
violated a federal drug law; (2) the defendant’s knowledge of
the conspiracy; and (3) the defendant’s knowing and voluntary
participation in the conspiracy. United States v. Strickland,
4
245 F.3d 368, 384-85 (4th Cir. 2001). Since a conspiracy is by
its nature clandestine and covert, it is generally proved by
circumstantial evidence. United States v. Burgos, 94 F.3d 849,
857 (4th Cir. 1996) (en banc). Evidence tending to prove a
conspiracy may include a defendant’s relationship with other
members of the conspiracy; moreover, the existence of a
conspiracy may be inferred from a development and collocation of
circumstances. Id. at 858. “Circumstantial evidence sufficient
to support a conspiracy conviction need not exclude every
reasonable hypothesis of innocence, provided the summation of
the evidence permits a conclusion of guilt beyond a reasonable
doubt.” Id. (citation omitted).
It is unnecessary that the conspiracy have a
“discrete, identifiable organizational structure.” United
States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993). An
important consideration is “whether the actor demonstrated a
substantial level of commitment to the conspiracy, for example
by engaging in a consistent series of smaller transactions that
furthered its ultimate object of supplying the consumer demand
of the market.” Id. (citation and internal quotation marks and
brackets omitted). Our review of the record leads us to
conclude that the district court did not err in finding there
was sufficient evidence for the jury to convict both Hernandez
and Puente-Vazquez on this count.
5
Next, Puente-Vazquez contends that there was
insufficient evidence to convict him of possession with intent
to distribute at least five kilograms of cocaine. To prove
possession with the intent to distribute cocaine, the Government
is required to prove that a defendant: (1) knowingly;
(2) possessed cocaine; (3) with the intent to distribute it.
United States v. Collins, 412 F.3d 515, 519 (4th Cir. 2005).
Possession may be actual or constructive. United States v.
Rusher, 966 F.2d 868, 878 (4th Cir. 1992). Intent to distribute
may be proved by a number of factors, including the amount of
cash seized, the possession of drug paraphernalia, and the
seizure of a quantity of drugs too large for personal
consumption. United States v. Fisher, 912 F.2d 728, 730-31 (4th
Cir. 1990). After our thorough review of the record, we
conclude that the district court did not err in denying Puente-
Vazquez’s motion for a judgment of acquittal as to the
possession with intent to distribute charge.
Hernandez claims that the evidence was insufficient to
sustain his conviction for attempted possession with intent to
distribute cocaine. To sustain a conviction for attempted
possession with intent to distribute, there must be sufficient
evidence demonstrating: (1) “culpable intent;” and (2) “a
substantial step toward the commission of the crime that is
strongly corroborative of that intent.” United States v.
6
Sutton, 961 F.2d 476, 478 (4th Cir. 1992) (internal quotation
marks omitted). “[A] substantial step is more than mere
preparation, yet may be less than the last act necessary before
the actual commission of the substantive crime.” Id. (internal
quotation marks omitted). This Court has held that “[w]hether
conduct represents a substantial step depends on the
‘surrounding factual circumstances’ and, therefore, such
determinations are necessarily fact specific.” United States v.
Neal, 78 F.3d 901, 906 (4th Cir. 1996). Again, our review of
the record leads us to conclude that the district court did not
err in denying Hernandez’s motion for a judgment of acquittal on
this count.
Hernandez next challenges the sufficiency of the
evidence on both of the firearms charges against him. To
convict Hernandez of violating § 924(c), the Government was
required to prove that Hernandez: (1) committed a drug
trafficking crime; and (2) possessed a firearm in furtherance of
that crime. 18 U.S.C. § 924(c)(1)(A) (2006). Because we find
that the evidence was sufficient to convict Hernandez of
conspiracy to possess with intent to distribute cocaine and
attempted possession with intent to distribute cocaine, the
first element is satisfied. Moreover, our review of the record
reveals that the district court was correct in concluding there
was sufficient evidence to satisfy the second element.
7
It is unlawful for any person who is an illegal alien
to “possess in or affecting commerce, any firearm or
ammunition.” 18 U.S.C. § 922(g)(5). Because Hernandez
stipulated that he was an illegal alien and that the pistol
found under the mattress at his house had travelled in
interstate commerce, the only contested issue is whether
Hernandez possessed the firearm. The Government was not
required to show that Hernandez physically possessed the
weapons. See United States v. Blue, 957 F.2d 106, 107 (4th Cir.
1992) (noting that, in a § 922(g) conviction, the government
need not produce evidence of actual possession, as it may
proceed on a constructive possession theory demonstrating that
the defendant showed ownership, dominion, or control over the
firearm itself). After reviewing the record, we conclude that
the evidence was sufficient to establish that Hernandez
possessed the firearm. Accordingly, we conclude that the
district court did not err in denying Hernandez’s motion for a
judgment of acquittal on either of the firearms counts.
Lastly, Puente-Vazquez challenges the district court’s
application of the obstruction of justice enhancement pursuant
to USSG § 3C1.1. A defendant’s base offense level is to be
increased two levels for obstruction of justice if “the
defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect
8
to the investigation, prosecution, or sentencing of the instant
offense of conviction, and . . . the obstructive conduct related
to (i) the defendant’s offense of conviction.” USSG § 3C1.1.
The commission of perjury by a defendant supports the
enhancement. USSG § 3C1.1 cmt. n.4(b). The Supreme Court has
defined perjury for purposes of § 3C1.1 in the following manner:
“[a] witness testifying under oath or affirmation” and giving
“false testimony concerning a material matter with the willful
intent to provide false testimony, rather than as a result of
confusion, mistake, or faulty memory.” United States v.
Dunnigan, 507 U.S. 87, 94 (1993). We conclude that the district
court did not err in applying this enhancement.
Accordingly, we affirm the judgment of the district
court. 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 in the decisional
process.
AFFIRMED
9