United States v. Hilaria Rodriguez , 493 F. App'x 472 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5201
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HILARIA RODRIGUEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:11-cr-00058-BR-1)
Submitted: August 30, 2012 Decided: September 7, 2012
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jenna T. Blue, BLUE STEPHENS & FELLERS LLP, Raleigh, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hilaria Rodriguez pled guilty to conspiring to
distribute and possess with intent to distribute at least 280
grams of cocaine base (“crack”), at least five kilograms of
cocaine, and a quantity of marijuana, in violation of 21 U.S.C.
§ 846 (2006), and distributing at least 500 grams of cocaine, in
violation of 21 U.S.C. § 841(a)(1) (2006). She was convicted
after a jury trial for possessing a firearm in furtherance of a
drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)
(2006). The district court imposed a sentence of 151 months.
Rodriguez appeals her convictions and sentence.
Counsel for Rodriguez has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting that there
are no meritorious issues for appeal but questioning whether the
district court complied with Fed. R. Crim. P. 11 when it
accepted Rodriguez’s plea, whether the district court erred when
it denied the Fed. R. Crim. P. 29 motions, and whether the
district court erred when it imposed a two-level enhancement for
Rodriguez’s role in the offense. Rodriguez filed a pro se
supplemental brief reasserting claims raised by counsel. The
Government has elected not to file a brief. We affirm.
Because Rodriguez did not move to withdraw her guilty
plea, the Rule 11 plea colloquy is reviewed for plain error.
United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002).
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After a thorough review of the record, we conclude that the
district court substantially complied with Rule 11, that any
omission did not affect Rodriguez’s substantial rights, and that
Rodriguez’s guilty plea was knowing and voluntary.
With regard to her conviction for possession of a
firearm in furtherance of a drug trafficking crime, Rodriguez
argues that the district court erred when it denied her Rule 29
motions for acquittal. This court reviews the denial of a Rule
29 motion de novo. United States v. Alerre, 430 F.3d 681, 693
(4th Cir. 2005). When a Rule 29 motion is based on a claim of
insufficient evidence, the jury’s verdict must be sustained “if
there is substantial evidence, taking the view most favorable to
the Government, to support it.” United States v. Abu Ali, 528
F.3d 210, 244 (4th Cir. 2008) (internal quotation marks,
brackets, and citations omitted). This court “ha[s] defined
‘substantial evidence’ as 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.”
Alerre, 430 F.3d at 693 (internal quotation marks and citations
omitted). In conducting our review, “we are not entitled to
assess witness credibility, and we assume that the jury resolved
any conflicting evidence in the prosecution’s favor.” United
States v. Taylor, 659 F.3d 339, 343 (4th Cir. 2011) (internal
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quotation marks and citation omitted), cert. denied, 132 S. Ct.
1817 (2012).
Section 924 prohibits possession of a firearm in
furtherance of a drug trafficking crime. 18 U.S.C.
§ 924(c)(1)(A). We conclude that the Government offered
sufficient evidence to support each element of the offense,
including Rodriguez’s participation in a drug trafficking
offense and Rodriguez’s possession of the firearm in furtherance
of that offense. See, e.g., United States v. Lomax, 293 F.3d
701, 705-06 (4th Cir. 2002) (analyzing sufficiency of evidence
of possession of firearm in furtherance of drug trafficking
crime). We therefore conclude that the district court did not
err in denying the Rule 29 motions.
This court reviews Rodriguez’s sentence for
reasonableness, applying the abuse-of-discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007). This review
requires consideration of both the procedural and substantive
reasonableness of the sentence. Id.; United States v. Lynn, 592
F.3d 572, 575 (4th Cir. 2010). After determining whether the
district court correctly calculated the advisory Guidelines
range, we must determine whether the court considered the 18
U.S.C. § 3553(a) (2006) factors, analyzed the arguments
presented by the parties, and sufficiently explained the
selected sentence. Lynn, 592 F.3d at 575-76; United States v.
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Carter, 564 F.3d 325, 330 (4th Cir. 2009). If the sentence is
free of significant procedural error, this court will review the
substantive reasonableness of the sentence. Lynn, 592 F.3d at
575; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
Rodriguez asserts that the enhancement for her role in
the offense was improperly applied. This court reviews the
application of sentencing enhancements for clear error. United
States v. Cabrera-Beltran, 660 F.3d 742, 756 (4th Cir. 2011),
cert. denied, 132 S. Ct. 1935 (2012). Rodriguez’s offense level
was increased by two levels based on her role as “an organizer,
leader, manager, or supervisor.” U.S. Sentencing Guidelines
Manual § 3B1.1(c) (2011). The enhancement applies to leadership
of only one other person “as long as there is some control
exercised.” United States v. Rashwan, 328 F.3d 160, 166 (4th
Cir. 2003). After reviewing the record and the district court’s
factual findings, we conclude that the district court’s
application of this enhancement was not clear error. We also
conclude, after a thorough examination of the record, that
Rodriguez’s sentence is procedurally reasonable and that
Rodriguez’s within-Guidelines sentence on the drug counts,
coupled with the mandatory minimum sentence on the firearm
count, was substantively reasonable. United States v. Farrior,
535 F.3d 210, 224 (4th Cir. 2008) (“A statutorily required
[mandatory minimum] sentence . . . is per se reasonable
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. . . .”); Abu Ali, 528 F.3d at 261 (“[A] sentence located
within a correctly calculated guidelines range is presumptively
reasonable.”).
In accordance with Anders, we have reviewed the record
and have found no meritorious issues for appeal. We therefore
affirm Rodriguez’s convictions and sentence. We deny counsel’s
motion to withdraw. This court requires that counsel inform
Rodriguez, in writing, of the right to petition the Supreme
Court of the United States for further review. If Rodriguez
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may renew her
motion in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
Rodriguez.
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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