United States v. Sierra-Gonzalez , 166 F. App'x 52 ( 2006 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 05-4491
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    LUIS SIERRA-GONZALEZ, a/k/a Jose Luis Sierra-
    Gonzalez, a/k/a Luis Sierra Gonzalez, a/k/a
    Abraham Morales Garcia, a/k/a Alraham Alfons
    Garcia-Morales,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western
    District of North Carolina, at Statesville. Richard L. Voorhees,
    District Judge. (CR-03-46)
    Submitted:   January 11, 2006             Decided:   February 7, 2006
    Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Mark P. Foster, Jr., NIXON, PARK, GRONQUIST & FOSTER, P.L.L.C.,
    Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
    United States Attorney, Charlotte, North Carolina; Amy E. Ray,
    Assistant United States Attorney, Asheville, North Carolina, for
    Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Luis Sierra-Gonzalez pled guilty to three counts of
    possession of controlled substances with intent to distribute and
    one count of conspiracy to possess with intent to distribute
    cocaine, cocaine base, and methamphetamine.                      Following a jury
    trial,   he    was        found   guilty    of     possession   of    a   firearm   in
    furtherance of a drug trafficking crime and possession of a firearm
    while being an alien illegally in the United States.
    At    sentencing,      the   district     court   overruled     Sierra-
    Gonzalez’s objections to the increased penalty applicable due to
    his prior drug conviction and the probation officer’s failure to
    credit   him       with    the    three-level      reduction    for   acceptance    of
    responsibility.           Because Sierra-Gonzalez had a prior felony drug
    conviction, he was subject to the twenty-year mandatory minimum
    sentence under 
    21 U.S.C. § 841
    (b)(1)(A) (2000). The district court
    sentenced him to 240 months on the controlled substance offenses
    and the related firearm charge and a consecutive 60-month term for
    possession of a firearm by an illegal alien.
    Sierra-Gonzalez first contends that the district court
    erred in denying his motion for judgment of acquittal on the
    firearm charges.           We find that the evidence that Sierra-Gonzalez
    traded drugs for the firearm was sufficient to constitute “use” of
    a firearm in relation to a drug trafficking offense.                      See Smith v.
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    United States, 
    508 U.S. 223
    , 241 (1993); United States v. Garnett,
    
    243 F.3d 824
    , 829 (4th Cir. 2001).
    To the extent that there was a variance between the
    indictment, which charged the using and carrying of a firearm “on
    or about August 21, 2003,” and the evidence, which proved only that
    the exchange of drugs for the firearm occurred some time during
    August 2003, we find this to be a minor variance.             “‘Where a
    particular date is not a substantive element of the crime charged,
    strict chronological specificity or accuracy is not required.’”
    United States v. Kimberlin, 
    18 F.3d 1156
    , 1158-59 (4th Cir. 1994)
    (quoting United States v. Morris, 
    700 F.2d 427
    , 429 (1st Cir.
    1983)).
    Moreover, notwithstanding the transfer of drugs for the
    firearm, we find that there was sufficient other evidence, viewed
    in the light most favorable to the Government, that Sierra-Gonzalez
    used or carried the firearm in relation to his sales of drugs.
    See Glasser v. United States, 
    315 U.S. 60
    , 80 (1942).           Sierra-
    Gonzalez kept the firearm in the same place he stored his drugs and
    from which he sold the drugs.     Also, he stated that he wanted a gun
    with a silencer and that he planned to kill an individual who had
    stolen drugs from him.     Because we agree that there was sufficient
    evidence   to   support   Sierra-Gonzalez’s   firearm   convictions,   we
    affirm the district court’s denial of his motion for judgment of
    acquittal.
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    Sierra-Gonzalez next argues that his Sixth Amendment
    rights   were    violated   when   the   sentencing     court   enhanced   his
    sentence based on a prior conviction, which was not alleged in the
    indictment or submitted to a jury.          This argument is foreclosed by
    United States v. Booker, 
    543 U.S. 220
    ,                , 
    125 S. Ct. 738
    , 756
    (2005) (“[W]e reaffirm our holding in Apprendi[ v. New Jersey, 
    530 U.S. 466
    , 490 (2000)]: Any fact (other than a prior conviction)
    which is necessary to support a sentence exceeding the maximum
    authorized by the facts established by a plea of guilty or a jury
    verdict must be admitted by the defendant or proved to a jury
    beyond a reasonable doubt.”); see Almendarez-Torres v. United
    States, 
    523 U.S. 224
    , 233-36 (1998).
    The final issue asserted by Sierra-Gonzalez is whether
    the district court erred in not reducing his offense level for
    acceptance      of   responsibility.        Because    Sierra-Gonzalez     was
    sentenced pursuant to the statutory mandatory minimum sentence,
    resolution of this issue does not affect his sentence.                In any
    event, we find that the district court properly declined to reduce
    Sierra-Gonzalez’s offense level for acceptance of responsibility
    because he failed to accept responsibility for “all of his criminal
    conduct.”    United States v. Gordon, 
    895 F.2d 932
    , 936 (4th Cir.
    1990) (“[I]n order for section 3E1.1 of the guidelines to apply, a
    defendant must first accept responsibility for all of his criminal
    conduct.”); see United States v. May, 
    359 F.3d 683
    , 694 (4th Cir.
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    2004).   Although Sierra-Gonzalez admitted his involvement in the
    drug charges, he pled “not guilty” and went to trial on the firearm
    offenses.
    In conclusion, we affirm Sierra-Gonzalez’s convictions
    and sentence. 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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