United States v. Jose Bahena , 539 F. App'x 297 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4014
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE MANUEL BAHENA,
Defendant - Appellant.
No. 13-4016
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE DE JESUS VILLA BELTRAN,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:12-cr-00214-CCE-3; 1:12-cr-00214-CCE-2)
Submitted: September 24, 2013 Decided: September 26, 2013
Before NIEMEYER and THACKER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,
Winston-Salem, North Carolina; Walter C. Holton, Jr., HOLTON LAW
FIRM, PLLC, Winston-Salem, North Carolina, for Appellants.
Ripley Rand, United States Attorney, Terry M. Meinecke,
Assistant United States Attorney, Winston-Salem, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Jose Manuel Bahena and Jose De Jesus Villa Beltran
entered guilty pleas to conspiracy to distribute marijuana, 21
U.S.C. § 846 (2006), and each received a sentence of five years’
imprisonment. Both appellants challenge the district court’s
determination that they did not qualify for a sentence below the
statutory mandatory minimum under U.S. Sentencing Guidelines
Manual § 5C1.2 (2012). Bahena also contends that the district
court clearly erred in his case by applying a two-level
enhancement for possession of a firearm under USSG
§ 2D1.1(b)(1). We affirm.
Bahena and Beltran were arrested in January 2012 when
law enforcement officers received information about drug
trafficking at a house in Reidsville, North Carolina, and
conducted surveillance there. Beltran and co-conspirator
Esteban Valentin Rojas-Rivera were stopped after leaving the
house and running a red light in a vehicle that contained
$290,447 in cash and caused a drug dog to alert. Bahena was at
the house and consented to a search, during which 474 kilograms
of marijuana were located in a bedroom in sealed four-pound
plastic bags. Also found were $2000 in cash, drug-trafficking
records, Bahena’s and Beltran’s wallets (each containing $500),
Bahena’s passport, and a firearm under a cushion on the couch in
the living room. Rojas-Rivera stated that he had hired Bahena
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and Beltran to help him distribute marijuana. Bahena told the
officers he had handled the gun, but was not involved with
marijuana distribution, and simply had been hired to stay in the
house and keep watch. Beltran said he told Rojas-Rivera he
needed money and had been brought to the house that day, saw
marijuana in the house, and volunteered to go with Rojas-Rivera
when he left to transport cash to an unknown destination.
Bahena maintains that the government failed to prove
that he possessed the firearm. However, the enhancement under
§ 2D1.1(b)(1) applies if a firearm is present during a drug
offense, unless the defendant can show that it was “‘clearly
improbable’ that the weapon was connected with his drug
activities.” United States v. Manigan, 592 F.3d 621, 630 n.8
(4th Cir. 2010) (quoting USSG § 2D1.1 cmt. n.11). The district
court did not clearly err when it determined that Bahena failed
to make this showing.
After making statements to the officers at the time of
arrest, neither Bahena nor Beltran provided any further
information to the government. Beltran’s attorney confirmed at
sentencing that he had chosen not to be interviewed further by
the government. To be eligible for relief under the safety
valve provision of § 5C1.2, a defendant must meet the five
criteria set out in 18 U.S.C. § 3553(f) (2006), the last of
which is that he have, by the time of sentencing, truthfully
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provided to the government all information and evidence he has
about the offense and other offenses that were part of the same
course of conduct or common scheme or plan. The defendant bears
the burden of proving that he has met the prerequisites for
relief under the safety valve provision, including truthful
disclosure. United States v. Aidoo, 670 F.3d 600, 605 (4th
Cir.), cert. denied, 133 S. Ct. 627 (2012); see also United
States v. Ivester, 75 F.3d 182, 184-85 (4th Cir. 1996)
(defendant must demonstrate that he has fully disclosed even if
government does not seek information from him). Neither
defendant showed that they had met this prerequisite. In
addition, the district court did not err in deciding that Bahena
was excluded on the ground that he possessed a firearm in
connection with the offense. USSG § 5C1.2(a)(2).
We therefore affirm the sentences. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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