United States v. Ruiz-Vargus , 29 F. App'x 163 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4656
FAUSTO RUIZ-VARGUS,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-00-407)
Submitted: February 5, 2002
Decided: February 15, 2002
Before WIDENER and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas H. Johnson, Jr., GRAY, NEWELL, JOHNSON & BLACK-
MON, L.L.P., Greensboro, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Steven H. Levin, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
2 UNITED STATES v. RUIZ-VARGUS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Fausto Ruiz-Vargus was charged in three counts of an eleven-count
indictment. In Count 1, he was charged with conspiracy to knowingly
and intentionally distribute in excess of five kilograms of cocaine
hydrochloride and in excess of 100 kilograms of marijuana in viola-
tion of 21 U.S.C.A. §§ 841(a)(1), 846 (West 1999); in Count 2, he
was charged with knowingly and intentionally possessing with intent
to distribute approximately 31.2 kilograms of cocaine hydrochloride
in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(A); and in Count 3, he
was charged with knowingly and intentionally possessing with intent
to distribute 8.26 kilograms of marijuana in violation of 21 U.S.C.A.
§ 841(a)(1), (b)(1)(D). Ruiz-Vargus was convicted following a jury
trial and sentenced to 200 months in prison for Counts 1 and 2, and
sixty months for Count 3, to run concurrently with the sentence for
Counts 1 and 2. Ruiz-Vargus appeals his conviction and sentence.
First, Ruiz-Vargus argues the district court should have granted his
motion for judgment of acquittal because there was insufficient evi-
dence to show he participated in a drug conspiracy. We review the
verdict to determine whether there is substantial evidence, taken in
the light most favorable to the Government, to support the conviction.
Glasser v. United States, 315 U.S. 60, 80 (1942). When considering
the sufficiency of the evidence, we do not review the credibility of a
witness’s testimony. United States v. Hobbs, 136 F.3d 384, 391 n.11
(4th Cir. 1998). We have reviewed the evidence and find, when
viewed in the light most favorable to the Government, the evidence
is sufficient to support Ruiz-Vargus’ conspiracy conviction.
Second, Ruiz-Vargus argues the testimony of Ponciano Carlos
Duarte should not have been admitted under Fed. R. Evid.
801(b)(2)(E). Because the admission of the testimony was not
objected to at trial, we review the admission of the evidence for plain
UNITED STATES v. RUIZ-VARGUS 3
error. See United States v. Olano, 507 U.S. 725, 732-36 (1993). We
have reviewed the record and found no error.
Finally, Ruiz-Vargus argues the district court erred in allowing
Hermino Martinez-Penalosa, a co-defendant, to assert his Fifth
Amendment privilege against self-incrimination at the sentencing
hearing. Ruiz-Vargus sought Martinez-Penalosa’s testimony to refute
Duarte’s testimony at trial that supported an obstruction of justice
sentencing enhancement. The district court, however, based its appli-
cation of the obstruction of justice enhancement on factors other than
Duarte’s testimony.
We therefore affirm Ruiz-Vargus’ conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED