United States v. Oscar Hernandez

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

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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,

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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.

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 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.

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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.

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 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

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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

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