United States v. Fernando Avalos , 462 F. App'x 378 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4297
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FERNANDO REYNOSO AVALOS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Anthony J. Trenga,
District Judge. (1:10-cr-00134-AJT-1)
Submitted: January 20, 2012 Decided: January 26, 2012
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Patricia Palmer Nagel, THE LAW OFFICES OF PATRICIA PALMER NAGEL,
PLC, Williamsburg, Virginia, for Appellant. Neil H. MacBride,
United States Attorney, Scott B. Nussbum, Special Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Fernando Reynoso Avalos (“Avalos”) was convicted after
a jury trial on one count of conspiracy to distribute five
kilograms or more of cocaine, in violation of 21 U.S.C. § 846(2006). The district court calculated Avalos’ Guidelines range
under the U.S. Sentencing Guidelines Manual (2010) at 324 to 405
months’ imprisonment and, after imposing a downward variance,
sentenced him to 210 months’ imprisonment. Avalos argues on
appeal that the evidence is insufficient to support his
conviction and that his sentence is unreasonable. We affirm.
We review de novo the district court’s denial of a
Fed. R. Crim. P. 29 motion for a judgment of acquittal. United
States v. Green, 599 F.3d 360, 367 (4th Cir.), cert. denied, 131
S. Ct. 271 (2010). When a defendant challenges the sufficiency
of the evidence supporting the jury’s guilty verdict, we view
the evidence and all reasonable inferences in favor of the
Government and will uphold the jury’s verdict if it is supported
by substantial evidence. United States v. Cameron, 573 F.3d
179, 183 (4th Cir. 2009). “[S]ubstantial evidence is 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.” Id. (internal quotation marks omitted).
Given the deference shown to the jury’s verdict on
appeal, this court has held that the uncorroborated testimony of
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a single witness may be sufficient to uphold a conviction, even
if that witness has credibility problems. United States v.
Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997) (holding that the
uncorroborated testimony of an informant may be sufficient to
sustain a conviction); United States v. Baker, 985 F.2d 1248,
1255 (4th Cir. 1993) (stating that the uncorroborated testimony
of an accomplice was sufficient to support conviction).
Further, in reviewing for substantial evidence, we will not
re-weigh the credibility of witnesses and assume that the jury
found witnesses credible. United States v. Reavis, 48 F.3d 763,
771 (4th Cir. 1995).
To obtain a conviction for conspiracy to distribute
cocaine, the Government must prove the following essential
elements: (1) an agreement between two or more persons to
distribute the drug; (2) the defendant’s knowledge of the
conspiracy; and (3) the defendant’s knowing and voluntary
participation in the conspiracy. Green, 599 F.3d at 367; United
States v. Yearwood, 518 F.3d 220, 225-26 (4th Cir. 2008). Once
the Government proves the existence of a conspiracy, the
evidence need only establish a “slight connection” between the
defendant and the conspiracy to support the conviction. Green,
599 F.3d at 367.
Avalos argues that, although the evidence adduced at
trial was sufficient to show the existence of a conspiracy to
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distribute five kilograms or more of cocaine, it is insufficient
to show the requisite slight connection between the conspiracy
and him because testimony linking him to the conspiracy was
given by witnesses with credibility problems and because the
wiretap and telephone record evidence presented by the
Government did not link him to the conspiracy. We reject this
assertion as meritless. In evaluating the sufficiency of the
evidence, we focus on whether a reasonable jury could have found
the defendant guilty of the charge, given the evidence before
it. After review of the trial transcripts, we conclude that the
witness testimony was more than sufficient to establish Avalos’
knowledge of the conspiracy and knowing and voluntary
participation in it. Thus, the jury could have reasonably found
that Avalos committed the offense charged.
With respect to the 210-month sentence, we review it
for reasonableness under a “deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This
abuse-of-discretion standard of review involves two steps; under
the first, we examine the sentence for significant procedural
errors, and under the second, we review the substance of the
sentence. United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007) (examining Gall, 552 U.S. at 50-51). When the district
court imposes a variant sentence, we consider “whether
the . . . court acted reasonably both with respect to its
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decision to impose such a sentence and with respect to the
extent of the divergence from the sentencing range.” United
States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir.
2007).
Avalos does not contend that the district court
committed any significant procedural error. Rather, he claims
that his 210-month sentence is unreasonable because his
co-conspirators were sentenced less harshly than him and because
the sentence violates the Equal Protection Clause of the
Constitution. We disagree.
It is well-settled that co-defendants and
co-conspirators may be sentenced differently for their
commission of the same offense. United States v. Pierce, 409
F.3d 228, 235 (4th Cir. 2005). Standing alone, then, the mere
fact that Avalos’ co-conspirators received prison sentences that
were less harsh than the prison sentence he received does not
provide a basis for vacating his sentence. Id. Further, a
criminal sentence violates the Equal Protection Clause “only if
it reflects disparate treatment of similarly situated defendants
lacking any rational basis.” Id. at 234. Avalos and his
co-conspirators, however, were not similarly situated. Avalos
was sentenced on the basis of all of the evidence adduced at
trial, including his co-conspirators’ testimony concerning the
sheer quantity of cocaine he distributed, the sums of money he
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collected, and his role directing the activities of others,
while his co-conspirators pled guilty and were sentenced based
on stipulations of facts to which the Government agreed and
based on information available prior to Avalos’ trial.
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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