UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4892
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL AGUIRRE CARRANZA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:10-cr-00005-BR-1)
Submitted: August 1, 2011 Decided: August 18, 2011
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sandra J. Barrett, Attorney, Asheville, North Carolina, for
Appellant. George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Denise Walker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel Aguirre Carranza pleaded guilty to possessing
with intent to distribute a quantity of cocaine, in violation of
21 U.S.C. § 841(a) (2006). A jury subsequently found him guilty
of participating in a conspiracy to distribute 500 grams or
more, but less than five kilograms, of cocaine, in violation of
21 U.S.C. § 846 (2006). The district court sentenced Carranza
to concurrent terms of 292 and 240 months in prison for the
conspiracy and distribution convictions, respectively. Carranza
appeals both his conviction at trial and his sentence. We
affirm.
Carranza claims that the district court erred by
denying his motions for a judgment of acquittal pursuant to Fed.
R. Crim. P. 29. We review the denial of a Rule 29 motion de
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.”
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Id. (internal quotation marks and citations 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).
Viewing the evidence in the light most favorable to
the prosecution, substantial evidence sustains the verdict
below. Testimony established that Carranza made large,
sometimes multi-kilogram, cocaine sales to multiple purchasers.
One of his customers, Michael Livengood, testified to purchasing
approximately 100 kilograms of cocaine from Carranza over an
eighteen month span. Carranza would take orders for the
cocaine, but he would sometimes send others, namely his two
brothers, to deliver it. In one recorded conversation, Carranza
stated that he had received a shipment of forty kilograms of
cocaine. In another, he stated that he was paying for the
cocaine lost when his brother was arrested. Upon his arrest,
Carranza told authorities that he picked up cocaine at one
residence and deposited the proceeds at another.
Carranza argues that the Government’s evidence came
solely from the testimony of Livengood, an unreliable source.
We are mindful in our review that “[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). Moreover, much
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of Livengood’s testimony was corroborated both by the recorded
conversations and Carranza’s own statements to authorities. In
short, Carranza has failed to carry his heavy burden on appeal.
We affirm his conspiracy conviction.
Carranza challenges a number of the district court’s
Sentencing Guidelines calculations. In assessing a sentencing
court’s application of the Guidelines, we review the court’s
legal conclusions de novo and its factual findings for clear
error. United States v. Harvey, 532 F.3d 326, 336 (4th Cir.
2008).
Carranza takes issue with the district court’s drug-
weight calculation, as it far exceeded the weight found by the
jury beyond a reasonable doubt. “But beyond establishing the
maximum sentence, the jury’s drug-quantity determination placed
no constraint on the district court’s authority to find facts
relevant to sentencing.” United States v. Young, 609 F.3d 348,
357 (4th Cir. 2010). Because of the differing burdens and
evidentiary rules applicable at sentencing, no conflict exists
between the sentencing court’s drug-weight finding and
Carranza’s conviction.
Carranza also argues that the district court erred in
enhancing his offense level by two points for his role as an
organizer, leader, manager, or supervisor of the criminal
activity under U.S. Sentencing Guidelines Manual (“USSG”)
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§ 3B1.1(c) (2009). We find that, given the evidence pertaining
to Carranza’s use of his brothers as deliverymen, the
enhancement was not clearly erroneous.
Carranza next challenges the district court’s
imposition of the two-level adjustment, under USSG
§ 2D1.1(b)(1), for possession of a dangerous weapon. The
dangerous weapon enhancement “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. To support
the enhancement “the Government does not need to prove precisely
concurrent acts, such as a gun in hand while in the act of
storing drugs. Rather, proof of constructive possession of the
dangerous weapon is sufficient, and the Government is entitled
to rely on circumstantial evidence to carry its burden.” United
States v. Manigan, 592 F.3d 621, 628-29 (4th Cir. 2010)
(internal quotation marks and citations omitted). “[S]o long as
a firearm’s location makes it readily available to protect
either the participants themselves during the commission of the
illegal activity or the drugs and cash involved in the drug
business, there will be sufficient evidence to connect the
weapon to the offense conduct.” Id. at 629 (internal quotation
marks, brackets, and citation omitted).
The evidence showed that Carranza left his loaded
handgun in his vehicle when he went inside a store to consummate
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a cocaine transaction. Although he did not take the gun into
the store with him while he consummated the deal, it was readily
available to him during the transportation phase of the
transaction. We do not find that the district court erred in
applying the enhancement.
Carranza’s last challenge to the district court’s
Guidelines calculation is to its denial of any offense level
reduction for acceptance of responsibility. We review such a
denial for clear error. United States v. Pauley, 289 F.3d 254,
261 (4th Cir. 2002). “[I]n most cases district courts are
uniquely qualified to evaluate whether to grant or deny a
sentence reduction for acceptance of responsibility.” United
States v. Hargrove, 478 F.3d 195, 198 (4th Cir. 2007).
Although the acceptance of responsibility reduction
“is not intended to apply to a defendant who puts the government
to its burden of proof at trial by denying the essential factual
elements of guilt,” conviction through trial “does not
automatically preclude a defendant from consideration for such a
reduction.” USSG § 3E1.1 cmt. n.2. For instance, a reduction
may still be appropriate where a defendant admits guilt but goes
to trial to preserve a constitutional challenge to a statute.
Id.
Carranza’s two convictions were properly grouped for
purposes of applying the Guidelines. “[O]nce a court groups
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appropriate counts and determines the initial combined offense
level for the grouped counts, it then decides whether any
adjustments to the offense level—including that for acceptance
of responsibility—should be made for the grouped offense.”
Hargrove, 478 F.3d at 199. A defendant must “accept
responsibility for the grouped guidelines counts in order to be
eligible for the reduction in offense level for that particular
‘offense.’” Id. at 200.
Carranza denied responsibility for the conspiracy
charge by going to trial on the issue of his guilt, and he
continues to deny responsibility in his appellate filings. By
putting the Government to its proof on this charge, Carranza
failed to accept responsibility for the grouped offense. The
district court did not clearly err in its denial of a reduction
for acceptance of responsibility.
Lastly, Carranza claims that his sentence was
unreasonable because it was substantially longer than the
sentences of similarly-situated defendants. We review a
sentence under a deferential abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007). The scant
information that we possess about the two defendants cited by
Carranza—his brother, Ebedo Carranza-Aguirre and Livengood—
indicates that they are not similarly situated. The district
court found Carranza to be the manager of the conspiracy;
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Livengood, for one, was a customer. Moreover, Carranza was the
only one of the three to go to trial. Carranza has failed to
overcome the presumption of reasonableness that attaches to his
within-Guidelines sentence on appeal.
We therefore affirm Carranza’s conviction 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 in the decisional
process.
AFFIRMED
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