UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4528
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MOISES FRIAS-GUEVARA,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:11-cr-00324-WO-1)
Submitted: June 7, 2013 Decided: June 19, 2013
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Wayne Buchanan Eads, Raleigh, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Sandra J. Hairston,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Convicted by a jury of one count of conspiracy to
“distribute 5 kilograms or more of . . . a detectable amount of
cocaine hydrochloride” in violation of 21 U.S.C. § 846, Moises
Frias-Guevara challenges his conviction on three grounds.
Initially, he maintains that the Government failed to
present sufficient evidence to convict him of conspiracy and so
the district court erred in denying his Fed. R. Crim. P. 29
motions for acquittal. In evaluating the sufficiency of the
evidence, we must uphold a jury verdict if, viewed in the light
most favorable to the Government, substantial evidence supports
the verdict. Glasser v. United States, 315 U.S. 60, 80 (1942);
United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). The
crux of Frias-Guevara’s argument is that because Esteban Meneses
Vasquez, with whom he was alleged to have conspired, had agreed
to cooperate with the Government, there could not have been a
criminal conspiracy between them. See Appellant’s Br. at 16-23.
Even if this is so, Frias-Guevara cannot prevail. For the
Government also presented evidence that another person, Jesus
Morales, who did not cooperate with the Government, conspired
with Frias-Guevara to distribute the controlled substance.
In addition, although he posed no relevant objection in the
district court, Frias-Guevara now maintains that the district
court committed two plain errors. Demonstrating such error
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presents a formidable challenge. See United States v. Olano,
507 U.S. 725, 732 (1993) (“There must be an error that is plain
and that affect[s] substantial rights. Moreover, . . . the
court should not exercise . . . discretion [to correct the
error] unless the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.”
(internal quotation marks omitted)). Neither of Frias-Guevara’s
arguments meet this standard.
The first plain error claim rests on the district court’s
asserted error in failing to provide a curative jury
instruction. We recently considered and rejected an identical
argument in United States v. Byers, 649 F.3d 197, 213 (4th Cir.
2011). We explained that even if a witness’s statement was
improper and inadmissible, “a district court does not commit
plain error merely because it fails to give curative
instructions sua sponte.” Id.
Frias-Guevara also asserts that the district court plainly
erred in failing to instruct the jury that a defendant cannot
conspire with a government agent. But this is not plain error
when the facts of the case make quite clear Frias-Guevara also
conspired with at least one person –- Morales -- who was not a
government agent.
For these reasons, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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