UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4584
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JORGE ISIAIS FERNANDEZ, a/k/a Chesperito, a/k/a Picapiedra,
a/k/a Esquivel Madrazo Aquiles,
Defendant - Appellant.
No. 11-4650
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANGEL FLORES, a/k/a Don Angel,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:10-cr-00370-CMH-6; 1:10-cr-00370-CMH-7)
Submitted: March 27, 2012 Decided: April 5, 2012
Before AGEE, DAVIS, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Keith Nelson Hurley, KEITH N. HURLEY, P.C., Richmond, Virginia;
Andrew Michael Stewart, DENNIS & STEWART, PLLC, Arlington,
Virginia, for Appellants. Neil H. MacBride, United States
Attorney, Lisa Owings, Assistant United States Attorney,
Mazen M. Basrawi, Special Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Jorge Isiais Fernandez and Angel Flores appeal their
convictions and sentences after a jury convicted them of
conspiracy to distribute cocaine in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2006). On appeal, they contend that the
evidence was insufficient to prove that they knowingly conspired
to distribute cocaine, and the district court erred in finding
that they possessed a dangerous weapon under U.S. Sentencing
Guidelines Manual § 2D1.1(b)(1) (2010). We affirm.
We review challenges to the sufficiency of evidence de
novo. United States v. Roe, 606 F.3d 180, 186 (4th Cir.), cert.
denied, 131 S. Ct. 617 (2010). We are obliged to sustain a
guilty verdict that, viewing the evidence in the light most
favorable to the prosecution, is supported by substantial
evidence. United States v. Osborne, 514 F.3d 377, 385 (4th Cir.
2008). Substantial evidence in the context of a criminal action
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. United States v. Burgos, 94
F.3d 849, 862 (4th Cir. 1996) (en banc).
A defendant bringing a sufficiency challenge bears a
“heavy burden.” United States v. Hoyte, 51 F.3d 1239, 1245 (4th
Cir. 1995). In evaluating the sufficiency of evidence, we do
not review the credibility of witnesses and assume the jury
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resolved all contradictions in the testimony in favor of the
Government. United States v. Foster, 507 F.3d 233, 245 (4th
Cir. 2007). “Reversal for insufficient evidence is reserved for
the rare case ‘where the prosecution’s failure is clear.’”
United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)
(quoting Burks v. United States, 437 U.S. 1, 17 (1978)).
To prove Defendants participated in a drug conspiracy,
the Government had to prove (1) an agreement between two or more
persons to engage in conduct violating a federal drug law, (2)
Defendants’ knowledge of the conspiracy, and (3) Defendants’
knowing and voluntary participation in the conspiracy. United
States v. Kellam, 568 F.3d 125, 139 (4th Cir. 2009). After a
conspiracy is shown to exist, the evidence need only establish a
slight connection between a defendant and the conspiracy to
support conviction. Id. “It is of course elementary that one
may be a member of a conspiracy without knowing its full scope,
or all its members, and without taking part in the full range of
its activities.” United States v. Banks, 10 F.3d 1044, 1054
(4th Cir. 1993). Proof of an agreement may be inferred from
circumstantial evidence. Burgos, 94 F.3d at 858. “[E]ven the
uncorroborated testimony of a co-conspirator may be sufficient
to support a guilty verdict for conspiracy.” United States v.
Yearwood, 518 F.3d 220, 226 (4th Cir. 2008).
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We review challenges to a district court’s enhancement
under USSG § 2D1.1(b)(1) for clear error. United States v.
Manigan, 592 F.3d 621, 630-31 (4th Cir. 2010). A two-level
enhancement applies “if a dangerous weapon (including a firearm)
was possessed.” USSG § 2D1.1(b)(1). The enhancement reflects
the increased danger of violence when drug traffickers possess
weapons and should be applied “unless it is clearly improbable
that the weapon was connected with the offense.” USSG § 2D1.1
cmt. n.3. The Government had to prove it was more probable than
not that the Defendants possessed the firearm “in connection
with the common scheme or plan of [their] drug activities.”
Manigan, 592 F.3d at 631. Proof of constructive possession is
sufficient, and the Government is entitled to rely on
circumstantial evidence to carry its burden. Id. at 629.
Moreover, the enhancement may be applied where a co-conspirator
possessed the firearm and the possession was a reasonably
foreseeable act in furtherance of the conspiracy. See United
States v. Kimberlin, 18 F.3d 1156, 1159-60 (4th Cir. 1994).
We have reviewed the record and conclude that the
evidence was sufficient to support Defendants’ convictions. We
further conclude that the district court did not clearly err in
finding Defendants possessed a dangerous weapon pursuant to USSG
§ 2D1.1(b)(1) and in applying the two-level enhancement.
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Accordingly, we affirm the district court’s judgments.
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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