United States v. Zuniga , 401 F. App'x 804 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5173
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ESTEBAN PENA ZUNIGA, a/k/a Tevo, a/k/a Tejon,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:08-cr-00366-JAB-3)
Submitted: November 18, 2010 Decided: November 24, 2010
Before SHEDD and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Benjamin D. Porter, MORROW ALEXANDER PORTER & WHITLEY, PLLC,
Winston-Salem, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Sandra J. Hairston, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Esteban Pena Zuniga pled guilty pursuant to a plea
agreement to one count of conspiracy to distribute cocaine
hydrochloride, in violation of 21 U.S.C.A. § 846 (West Supp.
2010), and one count of possession of firearms in furtherance of
a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i) (2006), and was sentenced to 230 months in
prison. Zuniga’s sole argument on appeal is that he was
improperly assessed one criminal history point for a 1996
conviction for consuming alcohol under the age of twenty-one
because he contends that the Government failed to prove he was
the person who received that conviction. Finding no error, we
affirm.
This court reviews a district court’s factual findings
underlying its Guidelines range calculation for clear error, and
its legal interpretation of the Guidelines de novo. See United
States v. Farrior, 535 F.3d 210, 223 (4th Cir. 2008). The
district court found by a preponderance of the evidence that
Zuniga was the individual who received the North Carolina
conviction, and we find no error in this factual finding. See
United States v. Manigan, 592 F.3d 621, 632 n.11 (4th Cir. 2010)
(reaffirming that a defendant must establish that his
presentence investigation report is inaccurate); see also United
States v. Love, 134 F.3d 595, 606 (4th Cir. 1998) (“A mere
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objection to the finding in the presentence report is not
sufficient. Without an affirmative showing the information is
inaccurate, the court is free to adopt the findings of the
presentence report without more specific inquiry or
explanation.”) (internal quotation marks, brackets, ellipses and
citation omitted).
Accordingly, we affirm the district court’s judgment.
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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