United States v. Zavala-Lopez , 426 F. App'x 151 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4468
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDUARDO ZAVALA-LOPEZ, a/k/a Eduardo Zavala,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:09-cr-00390-CMC-9)
Submitted: April 15, 2011 Decided: April 29, 2011
Before MOTZ, GREGORY, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael Chesser, Aiken, South Carolina, for Appellant. Julius
Ness Richardson, Assistant United States Attorney, Columbia,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant Eduardo Zavala-Lopez was convicted of
conspiracy to possess with the intent to distribute and
distribute cocaine, methamphetamine, and a mixture containing a
detectable amount of methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(A) (2006); aiding and abetting in a drug
conspiracy, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and
18 U.S.C. § 2 (2006); and illegal entry into the United States,
in violation of 8 U.S.C. § 1325(a)(2) (2006). Zavala-Lopez
timely appealed.
Zavala-Lopez’s attorney filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that, in his
view, there are no meritorious grounds for appeal, but
questioning the trial court’s admission into evidence of a cell
phone taken from Zavala-Lopez’s person during a search. Zavala-
Lopez filed a pro se supplemental brief alleging a violation of
his Confrontation Clause rights; questioning whether sufficient
evidence supported the district court’s drug quantity
calculation; and questioning the reasonableness of his sentence.
The Government has declined to file a brief. Because we find no
meritorious grounds for appeal, we affirm.
First, Zavala-Lopez questions whether the Government
adequately proved the chain of custody of the cell phone
admitted into evidence at his trial. This court reviews
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challenges to the district court’s admission of evidence over an
objection to the chain of custody for an abuse of discretion.
United States v. Jones, 356 F.3d 529, 535 (4th Cir. 2004). The
Federal Rules of Evidence “require[] that a party introducing
evidence establish the authenticity of its evidence by
demonstrating that ‘the matter in question is what its proponent
claims.’” Jones, 356 F.3d at 535 (quoting Fed. R. Evid.
901(a)). Thus, the Government must demonstrate a sufficient
chain of custody for the evidence. Id. To do so, “the
[G]overnment must . . . establish that the item to be introduced
is what it purports to be so as to convince the court that it is
improbable that the original item had been exchanged with
another or otherwise tampered with.” Id. (internal quotation
marks, alterations, and citation omitted).
Here, the Government asserted that the cell phone
admitted into evidence was the same cell phone that was seized
from Zavala-Lopez’s person at the time of his arrest. In
support of that proposition, the Government presented testimony
from the arresting officer, who searched Zavala-Lopez, recovered
the phone, placed the cell phone in a self-sealing evidence bag,
sealed the bag, and then placed it inside the trunk of his
vehicle. The Government also presented evidence from the
booking officer who took the bag, which he received when Zavala-
Lopez arrived at the station accompanied by the arresting
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officer. The booking officer opened the bag, identified it as
coming in with Zavala-Lopez, and entered the evidence it
contained — including the cell phone — onto an evidence log
sheet. The booking officer then placed the resealed bag into
the locked evidence locker. We conclude this testimony
adequately established the chain of custody.
Next, Zavala-Lopez alleges in his pro se supplemental
brief, the district court committed Crawford * error when it
admitted the testimony of law enforcement officers as to
statements Zavala-Lopez made during his interrogation. This
allegation is without merit, as the officers’ testimony
indicates they were the officers who interviewed Zavala-Lopez
and defense counsel thoroughly cross-examined the officers.
Zavala-Lopez also argues the district court lacked
sufficient evidence for its drug quantity computation. We
review a drug quantity finding for clear error. United States
v. Kellam, 568 F.3d 125, 147 (4th Cir. 2009). Under the clear
error standard of review, this Court will reverse only if “left
with the definite and firm conviction that a mistake has been
committed.” United States v. Jeffers, 570 F.3d 557, 570 (4th
Cir. 2009) (internal quotation marks and citation omitted). At
sentencing, the Government need only establish the amount of
*
Crawford v. Washington, 541 U.S. 36 (2004).
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drugs involved by a preponderance of the evidence. United
States v. Brooks, 524 F.3d 549, 561-62 (4th Cir. 2008). “Where
there is no drug seizure or the amount seized does not reflect
the scale of the offense, the court shall approximate the
quantity of the controlled substance.” USSG § 2D1.1, cmt. n.12.
The district court did not err in determining the drug
quantity attributable to Zavala-Lopez. At trial, the
interviewing officers testified Zavala-Lopez described regularly
bringing a quarter of a kilogram of cocaine from Atlanta,
Georgia, to Columbia, South Carolina, to sell during the six
months prior to his arrest. Zavala-Lopez told law enforcement
“that 20 times was a safe estimate” of the number of times he
had brought drugs to Columbia and sold them. Accordingly, the
district court determined the drug quantity in this case by
multiplying 250 grams by 20 and concluding Zavala-Lopez was
responsible for 5,000 grams of cocaine. This conclusion was
adequately supported by the evidence.
Finally, we conclude Zavala-Lopez’s sentence was
reasonable. This court reviews a district court’s sentence for
reasonableness under an abuse of discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007); see also United States v.
Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007). When sentencing a
defendant, a district court must: (1) properly calculate the
Guidelines range; (2) determine whether a sentence within that
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range serves the factors set out in 18 U.S.C. § 3553(a) (2006);
(3) implement mandatory statutory limitations; and (4) explain
its reasons for selecting a sentence. Pauley, 511 F.3d at 473.
In the Fourth Circuit, “[a] sentence within the proper
Sentencing Guidelines range is presumptively reasonable.”
United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see
also Rita v. United States, 551 U.S. 338, 347-56 (2007)
(permitting presumption of reasonableness for a within-
Guidelines sentence).
Here, the district court followed the necessary
procedural steps in sentencing Zavala-Lopez. It properly
calculated the Guidelines range, considered the § 3553(a)
factors, applied those factors to Zavala-Lopez’s individual
situation, and adequately communicated the basis for the
sentence to Zavala-Lopez. Hence, we determine that the sentence
imposed by the district court was reasonable.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Zavala-Lopez, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Zavala-Lopez requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
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withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Zavala-Lopez.
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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