United States v. Jobani Gonzalez-Trejo , 481 F. App'x 55 ( 2012 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 11-4771
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    JOBANI GONZALEZ-TREJO, a/k/a Dog,
    Defendant - Appellant.
    No. 11-4772
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    EDILBERTO ANGELES-GUZMAN, a/k/a Primo,
    Defendant – Appellant.
    Appeals from the United States District Court for the Eastern
    District of North Carolina, at Raleigh.      Terrence W. Boyle,
    District Judge. (5:09-cr-00264-BO-1; 5:09-cr-00264-BO-2)
    Submitted:   May 3, 2012                        Decided:   June 6, 2012
    Before AGEE and    DAVIS,   Circuit   Judges,   and   HAMILTON,   Senior
    Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    Gregory B. Smith, LAW OFFICES OF GREGORY B. SMITH, Washington,
    D.C., for Appellant Jobani Gonzalez-Trejo; Jorgelina E. Araneda,
    ARANEDA LAW FIRM, PC, Raleigh, North Carolina, for Appellant
    Edilberto Angeles-Guzman.    Thomas G. Walker, United States
    Attorney, Jennifer P. May-Parker, Assistant United States
    Attorney, Kristine L. Fritz, Assistant United States Attorney,
    OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
    for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    2
    PER CURIAM:
    Jobani    Gonzalez-Trejo           and    Edilberto          Angeles-Guzman
    (collectively        Appellants)       pleaded        guilty    to        conspiracy     to
    distribute     and    to     possess       with    intent      to    distribute        five
    kilograms or more of cocaine, 
    21 U.S.C. §§ 841
    (a)(1) and 846,
    and related substantive offenses.                  The Appellants each received
    a   sentence    of    151    months’       imprisonment.             On    appeal,     they
    challenge their respective sentences.                 We affirm.
    Appellants first argue that the district court erred
    in calculating the base drug amount attributable to them under
    United    States     Sentencing      Commission        Guidelines         Manual     (USSG)
    § 2D1.1    (2010).          More   specifically,         they       contend    that     the
    district     court’s       finding     concerning        the    base        drug   amount
    required it to start at a base offense level of 32 instead of
    34.
    A Presentence Investigation Report (PSR) was prepared
    for each of the Appellants.                 In the reports, both Appellants
    were attributed in excess of 156 kilograms of cocaine for their
    respective roles in the conspiracy, which resulted in a base
    offense level of 38, see USSG § 2D1.1(c)(1) (requiring more than
    150 kilograms of cocaine).             Much of this drug amount was based
    on information provided by a confidential informant (CI).                               The
    Appellants     objected       to     the    drug      calculations,          urging    the
    district court to find that they were responsible for between
    3
    five and fifteen kilograms of cocaine, which corresponded to a
    base offense level of 32, see id. § 2D1.1(c)(4) (requiring at
    least five but less than fifteen kilograms of cocaine).                                          The
    district     court        sustained       the    objection       in    part       based    on    its
    finding      that     the    CI     was     not       a     “credible    witness          for    the
    government.”         (J.A. 207).           Although its drug amount finding was
    no   model    of     clarity,      the     district          court    made    a    conservative
    estimate      of      the     amount        of        cocaine        attributable         to     the
    Appellants,        finding     them       responsible         for     between      fifteen       and
    fifty kilograms of cocaine, which resulted in a base offense
    level of 34, see USSG § 2D1.1(c)(3) (requiring at least fifteen
    but less than fifty kilograms of cocaine).
    We    review     the       district         court’s      calculation         of    the
    quantity of drugs attributable to a defendant for sentencing
    purposes for clear error.                 United States v. Slade, 
    631 F.3d 185
    ,
    188 (4th Cir. 2011); United States v. Randall, 
    171 F.3d 195
    , 210
    (4th Cir. 1999).             Under USSG § 1B1.3(a)(1)(B), a defendant is
    responsible        not     only     for    his        own    acts,     but    also    for       “all
    reasonably          foreseeable           acts”        of      his      coconspirators            in
    furtherance          of      the         joint        criminal         activity.                USSG
    § 1B1.3(a)(1)(B).                  The     defendant           bears      the       burden       of
    establishing that the information relied upon by the district
    court is erroneous.           Randall, 
    171 F.3d at
    210–11.
    4
    On    appeal,       the    Appellants      argue          that   the   district
    court specifically found that between five and fifty kilograms
    of cocaine were attributable to them for sentencing purposes.
    According to the Appellants, because such a finding straddles
    base offense levels 32, see USSG § 2D1.1(c)(4) (requiring at
    least five but less than fifteen kilograms of cocaine), and 34,
    see id. § 2D1.1(c)(3) (requiring at least fifteen but less than
    fifty kilograms of cocaine), the district court was required to
    assign each of them a base offense level of 32 instead of 34.
    The problem with the Appellants’ argument is that it rests on a
    faulty premise.         Although the district court stated that it was
    “inclined   to     believe      that    the       preponderance         of   the   evidence
    establishes       between    five      and    fifty     keys,”         (J.A.     153),     the
    district court went on to clarify and find that a preponderance
    of the evidence supported an attributable drug amount between
    fifteen and fifty kilograms of cocaine which corresponded to a
    base offense level of 34.               Considering the evidence before the
    district court, such finding is not clearly erroneous.
    The    Appellants         next    argue    that       the    district        court
    improperly applied a two-level enhancement for possession of a
    firearm.        Under    USSG    §     2D1.1(b)(1),         a   district       court      must
    increase    a     defendant’s         offense       level       two     levels     “[i]f     a
    dangerous weapon (including a firearm) was possessed.”                                   USSG
    § 2D1.1(b)(1).       In order to prove that a weapon was present, the
    5
    government “need show only that the weapon was possessed during
    the   relevant        illegal      drug     activity.”            United        States    v.
    McAllister, 
    272 F.3d 228
    , 233–34 (4th Cir. 2001).
    Here,     the     PSRs   recommended          application      of    the     two-
    level enhancement under USSG § 2D1.1(b)(1) because a “firearm
    was seized from a residence used by [the Appellants] to store
    and   distribute         cocaine.”          (J.A.    197-98).            Angeles-Guzman
    objected to the recommendation, but Gonzalez-Trejo did not.                               The
    district         court        overruled         Angeles-Guzman’s                objection.
    Consequently, the district court applied the enhancement to the
    Appellants.
    With regard to Angeles-Guzman’s challenge, our review
    is for clear error.            McAllister, 
    272 F.3d at 234
    .                     Under this
    standard    of    review,     we     will   only     reverse      if    left     with    the
    “definite     and      firm     conviction       that       a     mistake       has      been
    committed.”       United States v. Harvey, 
    532 F.3d 326
    , 336–37 (4th
    Cir. 2008) (citation and internal quotation marks omitted).
    Gonzalez-Trejo’s          failure       to    raise    this     issue      below
    means that he must meet the more demanding plain error standard.
    See United States v. Massenburg, 
    564 F.3d 337
    , 341–42 (4th Cir.
    2009) (failure to raise issue at sentencing mandates plain error
    review).         In   order     to    satisfy       the    plain       error     standard,
    Gonzalez-Trejo must show: (1) an error was made; (2) the error
    is plain; and (3) the error affects substantial rights.                               United
    6
    States v. Olano, 
    507 U.S. 725
    , 732 (1993).                               The decision to
    correct the error lies within this court’s discretion, which
    should be exercised “only if the error seriously affects the
    fairness,       integrity          or      public         reputation       of      judicial
    proceedings.”          Massenburg,         
    564 F.3d at 343
         (citation      and
    internal quotation marks omitted).
    The     USSG     §     2D1.1(b)(1)        enhancement          “reflects      the
    increased     danger    of       violence      when       drug    traffickers       possess
    weapons”    and    should     be    applied       “if     the     weapon    was    present,
    unless it is clearly improbable that the weapon was connected
    with the offense.”           USSG § 2D1.1(b)(1), cmt. n.3.                       It is the
    defendant’s       burden     to     show      that    a     connection         between    his
    possession of a firearm and his narcotic offense is “clearly
    improbable.”       United States v. Harris, 
    128 F.3d 850
    , 852 (4th
    Cir. 1997) (internal quotation marks omitted).
    The     enhancement          is    proper       when    “the       weapon     was
    possessed in connection with drug activity that was part of the
    same   course     of   conduct      or     common     scheme       as    the    offense    of
    conviction,” United States v. Manigan, 
    592 F.3d 621
    , 628–29 (4th
    Cir. 2010) (citation and internal quotation marks omitted), even
    in   the   absence     of    “proof      of    precisely         concurrent      acts,    for
    example, gun in hand while in the act of storing drugs, drugs in
    hand while in the act of retrieving a gun.”                        Harris, 
    128 F.3d at 852
     (citation and internal quotation marks omitted).
    7
    Pursuant to USSG § 1B1.3(a)(1)(B), a defendant may be
    held responsible for a firearm possessed by another member of
    the   conspiracy       if    possession      of    the    firearm        was   “reasonably
    foreseeable” to the defendant and “in furtherance of the jointly
    undertaken criminal activity.”                    USSG § 1B1.3(a)(1)(B); United
    States    v.    Kimberlin,     
    18 F.3d 1156
    ,       1159-60    (4th       Cir.   1994).
    Moreover, “[a]bsent evidence of exceptional circumstances, . . .
    it [is] fairly inferable that a codefendant’s possession of a
    dangerous weapon is foreseeable to a defendant with reason to
    believe that their collaborative criminal venture includes an
    exchange of controlled substances for a large amount of cash.”
    Kimberlin,       
    18 F.3d at 1160
        (citation      and     internal      quotation
    marks omitted and alterations in original).
    The Appellants argue that the district court erred by
    holding    them       responsible     for     a    firearm       recovered       from    the
    mobile    home    that      Angeles-Guzman        shared    with     his       brother   and
    cousin.    The Appellants first posit that there was no evidence
    that the firearm was connected to the conspiracy.                              With regard
    to    Gonzalez-Trejo,        the    argument       is    taken     one    step    further,
    positing that there was no evidence that Gonzalez-Trejo had ever
    been to the home or was connected to it in any way.
    In this case, the evidence showed that the Appellants
    were involved in a drug conspiracy which involved the steady
    sale and storage of cocaine at a mobile home that Angeles-Guzman
    8
    shared     with    his    brother    and    cousin.       Following         one   of     the
    transactions,       the    one    which    resulted      in    the    arrests     of     the
    Appellants, a firearm was found in the living room of the mobile
    home and cocaine, which, at the time of the search, Angeles-
    Guzman claimed was his, was found in a bedroom in the home.
    Given     the    close    relationship      between      the    Appellants        and    the
    sizeable        amount   of     cocaine    that   was    being       sold   during      the
    conspiracy,        it    was    reasonably      foreseeable       to    both      of    the
    Appellants that a firearm in furtherance of their joint drug
    distribution        efforts       would    be     kept    in    the     mobile         home.
    Kimberlin, 
    18 F.3d at 1160
    .                 Put another way, the Appellants
    have not shown that it was “clearly improbable” that the firearm
    was connected with the drug conspiracy.                       Accordingly, there is
    no   clear      error,    let    alone    plain    error.        We    hold    that     the
    district court did not err in imposing the two-level enhancement
    for possession of a firearm in furtherance of the conspiracy. *
    *
    Gonzalez-Trejo contends that he received ineffective
    assistance of counsel at sentencing that resulted in an improper
    sentence. Claims of ineffective assistance of counsel generally
    are not cognizable on direct appeal. United States v. King, 
    119 F.3d 290
    , 295 (4th Cir. 1997).     Rather, to allow for adequate
    development of the record, federal prisoners ordinarily must
    pursue such claims in a motion under 
    28 U.S.C. § 2255
    .     United
    States v. Hoyle, 
    33 F.3d 415
    , 418 (4th Cir. 1994). An exception
    exists when the record conclusively establishes ineffective
    assistance of counsel.    King, 
    119 F.3d at 295
    .     Because our
    review of the record in this appeal does not conclusively
    establish   ineffective  assistance   of  counsel,  we   conclude
    (Continued)
    9
    For the reasons stated, we affirm the judgments 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
    Gonzalez-Trejo’s ineffective assistance claim should be brought
    in a motion under § 2255.
    10