UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4962
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JESUS BURUCA MARTINEZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. J. Michelle Childs, District
Judge. (8:12-cr-00481-JMC-10)
Submitted: July 20, 2016 Decided: July 29, 2016
Before GREGORY, Chief Judge, and KING and HARRIS, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
G. Wells Dickson, Jr., WELLS DICKSON, P.A., Kingstree, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, A. Lance Crick, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jesus Buruca Martinez appeals the district court’s judgment
and sentence of 120 months in prison after the jury convicted
him of conspiracy to distribute 500 grams or more of a mixture
containing a detectable amount of methamphetamine in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. Martinez’s attorney
filed a brief under Anders v. California, 386 U.S. 738 (1967),
asserting there were no meritorious grounds for appeal but
raising the issues of whether the evidence was sufficient to
support his conviction and whether his sentence was reasonable.
Martinez was notified of his right to file a pro se supplemental
brief but has not done so. After the Anders brief was filed, we
directed the parties to file supplemental briefs addressing
whether the district court plainly erred in finding that the
statutory mandatory minimum applied and sentencing the defendant
based on the jury’s verdict when the verdict only stated the
amount of drugs distributed by the entire conspiracy as a whole.
The parties complied, and the appeal is now ripe. We affirm.
In the Anders brief, Martinez’s attorney first raised the
issue of whether the evidence was sufficient to support his
conviction but concluded that it was. We review this issue de
novo. See United States v. Said, 798 F.3d 182, 193 (4th Cir.
2015), cert. denied, 84 U.S.L.W. 3643 (2016). “In reviewing
evidence sufficiency contentions, we are obliged to view the
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evidence in the light most favorable to the government and
sustain the jury’s verdict if any rational trier of fact could
have found the essential elements of the crime charged beyond a
reasonable doubt.” Id. at 193-94 (citation and internal
quotation marks omitted). “A defendant challenging the
sufficiency of the evidence faces a heavy burden, as [r]eversal
for insufficient evidence is reserved for the rare case where
the prosecution’s failure is clear.” Id. at 194 (citation and
internal quotation marks omitted).
To establish a drug conspiracy under 21 U.S.C. § 846, the
government must prove that (1) the defendant entered into an
agreement with one or more persons to engage in conduct that
violated 21 U.S.C. § 841(a)(1); (2) the defendant had knowledge
of that conspiracy; and (3) the defendant knowingly and
voluntarily participated in the conspiracy. United States v.
Howard, 773 F.3d 519, 525 (4th Cir. 2014) (citation omitted).
“Given the ‘clandestine and covert’ nature of conspiracies, the
government can prove the existence of a conspiracy by
circumstantial evidence alone.” Id. (quoting United States v.
Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc)). Once the
conspiracy is proven, the evidence need only establish a slight
connection between the defendant and the conspiracy to support
his conviction. Burgos, 94 F.3d at 861.
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Applying these standards, and viewing the evidence in the
light most favorable to the prosecution, we conclude that it was
sufficient to support Martinez’s drug conspiracy conviction.
In the Anders brief, Martinez’s counsel also questioned
whether his sentence was reasonable but concluded that it was.
In his supplemental brief, counsel now argues the district court
plainly erred in violation of United States v. Collins, 415 F.3d
304 (4th Cir. 2005), by imposing the mandatory minimum sentence
of 120 months when the quantity of drugs reasonably foreseeable
to Martinez was not found by the jury; the error affected his
substantial rights; and it seriously affected the fairness,
integrity, or public reputation of the judicial proceedings.
The Government concedes the district court plainly erred
under Collins as there was no place on the verdict form for the
jury to indicate the amount of methamphetamine attributable to
Martinez individually. The Government also concedes the error
affected his substantial rights but argues we should decline to
notice the error, as it did not seriously affect the fairness,
integrity, or public reputation of the judicial proceeding.
We review a criminal sentence for an abuse of discretion.
United States v. Martinovich, 810 F.3d 232, 242 (4th Cir. 2016)
(citing Gall v. United States, 552 U.S. 38, 41 (2007)).
Procedural sentencing errors and other specific claims of error
raised for the first time on appeal are reviewed for plain
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error. United States v. Hargrove, 625 F.3d 170, 184 (4th Cir.
2010); United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010).
A defendant sentenced based on an erroneous, higher Guidelines
range is prejudiced even if the sentence falls in the correct
range. Molina-Martinez v. United States, 136 S. Ct. 1338
(2016).
In United States v. Collins, “we held that, in order to
properly apply the sentencing provisions of § 841(b)(1) in a
§ 846 drug conspiracy prosecution, the jury must determine that
the threshold drug quantity was reasonably foreseeable to the
defendant.” United States v. Jeffers, 570 F.3d 557, 569 (4th
Cir. 2009) (citing Collins, 415 F.3d at 314). When a defendant
fails to object on the Collins issue, we review for plain error
only. Id.; United States v. Foster, 507 F.3d 233, 249 (4th Cir.
2007). He must show that an error occurred; it was plain; and
it affected his substantial rights. Jeffers, 570 F.3d at 569.
“Even if he makes such a showing, however, we can decline to
correct the error unless it seriously affected the fairness,
integrity, or public reputation of judicial proceedings.” Id.
(citation and internal quotation marks omitted).
“[W]here the evidence against a defendant is overwhelming
and essentially uncontraverted, a plain error does not seriously
affect the fairness, integrity, or public reputation of judicial
proceedings, and a reviewing court can choose not to recognize
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it.” Id. (citation and internal quotation marks omitted). “In
United States v. Foster, we further explained that if the
evidence ‘overwhelmingly establishe[s]’ that the defendant was
personally responsible for the threshold quantity of drugs, and
if his trial assertions ‘primarily focused on whether he
committed the offenses and not on the drug quantities reasonably
foreseeable to him,’ we may decline to recognize a plain Collins
error.” Id. at 569-70 (quoting Foster, 507 F.3d at 252).
Having reviewed the record and the parties’ arguments, we
conclude that the evidence overwhelmingly established Martinez
was personally responsible for at least the threshold quantity
of 500 grams of methamphetamine. Moreover, his trial assertions
primarily focused on whether he committed the offenses and not
on the drug quantities reasonably foreseeable to him. We
therefore decline to recognize the plain Collins error and
conclude that his 120-month sentence is reasonable.
In accordance with Anders, we have reviewed the record and
have found no meritorious issues for appeal. Accordingly, we
affirm the district court’s judgment. This court requires that
counsel inform his or her client, in writing, of his or her
right to petition the Supreme Court of the United States for
further review. If the client 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
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withdraw from representation. Counsel’s motion must state that
a copy thereof was served on the client. 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
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