United States v. Romano , 142 F. App'x 688 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4489
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VIRNA VENTURA ROMANO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonard D. Wexler, Senior
District Judge, sitting by designation. (CR-03-593)
Submitted: May 11, 2005 Decided: July 29, 2005
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph J. McCarthy, DELANEY, MCCARTHY & COLTON, P.C., Alexandria,
Virginia, for Appellant. Paul J. McNulty, United States Attorney,
Lawrence J. Leiser, Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Virna Ventura Romano appeals her convictions and sentence
following her indictment and trial on charges related to narcotics
smuggling. Finding no reversible error, we affirm.
Romano first claims that the district court erred by
allowing a lay witness to testify to an expert opinion. To the
extent Romano preserved this claim, we review for an abuse of
discretion by the district court. See Gen. Elec. Co. v. Joiner,
522 U.S. 136, 139 (1997); United States v. Powers, 59 F.3d 1460,
1470-71 (4th Cir. 1995). We conclude that the error, if any, is
harmless because adequate and independent evidence supported the
verdict. Consequently, “the judgment was not substantially swayed
by the error.” See United States v. Nyman, 649 F.2d 208, 211-12
(4th Cir. 1980) (quoting Kotteakos v. United States, 328 U.S. 750,
765 (1946)).
We likewise conclude that the district court did not err
in denying Romano’s motion for a judgment of acquittal made
pursuant to Fed. R. Crim. P. 29. “The verdict of a jury must be
sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it.” Glasser v. United
States, 315 U.S. 60, 80 (1942). When we consider Romano’s nervous
behavior, her inconsistent statements and declaration forms, and
the circumstances of her hastily arranged and exceedingly brief
proposed stay in the United States, we conclude the Government
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produced substantial evidence of Romano’s knowledge of the
contraband nature of the contents of her luggage.
Romano next assigns error to the district court’s
instruction to the jury regarding deliberate ignorance. An
instruction on deliberate ignorance “is proper when the defendant
asserts a lack of guilty knowledge but the evidence supports an
inference of deliberate ignorance” on the defendant’s part. United
States v. Ruhe, 191 F.3d 376, 384 (4th Cir. 1999) (internal
quotation marks and citations omitted). In this matter, the
circumstances surrounding Romano’s travel to the United States and
her explanation regarding her possession of the contraband
exhibited a degree of deliberate ignorance, rendering the
instruction proper. Accordingly, we deny this claim.
Romano assigns several claims of error to evidentiary
rulings of the district court relating to a videotape and character
testimony. Our review of the transcript discloses no abuse of
discretion by the district court in excluding the videotape and
limiting the nature and scope of what would have been cumulative or
irrelevant testimony. Accordingly, we deny these claims.
Finally, Romano claims that the district court violated
her Sixth Amendment right to trial by a jury. In United States v.
Hughes, 401 F.3d 540 (4th Cir. 2005), this court held a district
court commits plain error by sentencing a defendant to a term that
exceeds the maximum sentence then authorized under the Sentencing
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Guidelines by the facts found by the jury alone. The jury’s
verdict supports a finding that Romano was responsible for the
importation of 500 grams or more of cocaine. This quantity of
cocaine corresponds to a sentencing range of sixty-three to
seventy-eight months’ imprisonment. See U.S. Sentencing Guidelines
Manual § 2D1.1(c)(7) (2003); Ch. 5, Pt. A, table. The district
court’s sentence of seventy months was within this range.
Although a mandatory application of the guidelines is
erroneous even in the absence of a Sixth Amendment violation, see
United States v. White, 405 F.3d 208, 216-17 (2005), Romano is not
entitled to resentencing unless she can also demonstrate that the
error affected her substantial rights. We conclude that Romano has
not satisfied this requirement as the record does not provide a
nonspeculative basis for concluding that the district court’s
mandatory application of the sentencing guidelines resulted in
prejudice to her. See id. at 223. Accordingly, we find no
reversible error in the district court’s imposition of sentence.
We affirm the judgment of the district court. 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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