United States v. Alfred Buensalida , 537 F. App'x 226 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4788
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALFRED BUENSALIDA, a/k/a JJ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:11-
cr-00061-RWT-1)
Submitted: July 29, 2013 Decided: August 7, 2013
Before KING, GREGORY, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas J. Saunders, LAW OFFICE OF THOMAS J. SAUNDERS, Baltimore,
Maryland, for Appellant. Adam Kenneth Ake, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alfred Buensalida appeals his conviction and the 180-
month sentence imposed after he was found guilty by jury of
conspiracy to distribute and possess with intent to distribute
fifty or more grams of methamphetamine, in violation of 21
U.S.C. § 846 (2006). Counsel for Buensalida filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
certifying that there are no meritorious issues for appeal but
questioning: (1) whether the district court erred in denying
Buensalida’s motions to dismiss for lack of venue and to
transfer venue; (2) whether the district court erred in failing
to suppress wiretap evidence; (3) whether the district court
erred in failing to suppress Buensalida’s confession; and
(4) whether the evidence was sufficient to support Buensalida’s
conviction. Buensalida has filed a pro se supplemental brief,
repeating the issues raised by counsel and raising the following
additional issues: (1) whether trial counsel provided
ineffective assistance; (2) whether the district court erred in
attributing over 500 grams of methamphetamine to him at
sentencing; (3) whether the district court erred in applying a
two-level sentencing enhancement for possessing a firearm; (4)
whether the district court erred in applying statutory penalties
of a minimum of ten years and a maximum of life in prison; (5)
whether the district court erred in imposing a disparate
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sentence; and (6) whether the district court improperly
instructed the jury. The Government has elected not to file a
brief. For the reasons that follow, we affirm.
I.
We first address the issue of venue. We review the
district court’s denial of a motion to dismiss for lack of venue
de novo. United States v. Engle, 676 F.3d 405, 412 (4th Cir.),
cert. denied, 133 S. Ct. 179 (2012). The Constitution
guarantees a criminal defendant the right to be tried in the
district where his offense was committed. U.S. Const., art.
III, § 2; amend. VI; United States v. Rodriguez-Moreno, 526 U.S.
275, 276-82 (1999). A conspiracy may be prosecuted in any
district where some act in furtherance of the conspiracy was
committed. United States v. Gilliam, 975 F.2d 1050, 1057 (4th
Cir. 1992). Whether a particular defendant was ever physically
present in the district may be irrelevant to the issue of venue.
See United States v. Al-Talib, 55 F.3d 923, 928 (4th Cir. 1995).
If the defendant objects to venue, the matter should be
submitted to the jury if there is any genuine issue of material
fact. Engle, 676 F.3d at 413.
We review the district court’s denial of a motion to
transfer venue for abuse of discretion. United States v. Heaps,
39 F.3d 479, 482-83 (4th Cir. 1994), abrogated on other grounds
by United States v. Cabrales, 524 U.S. 1 (1998). In deciding
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whether to grant a motion to transfer venue, the district court
should consider the factors enumerated by the Supreme Court in
Platt v. Minn. Mining & Mfg. Co., 376 U.S. 240 (1964).
We conclude that the evidence fully supported venue in
Maryland. Although Buensalida resided in California throughout
the conspiracy, various acts in furtherance of the conspiracy
occurred in Maryland, including Buensalida’s shipment of
methamphetamine to Maryland, his coconspirator’s shipment of
cash from Maryland, and the distribution of methamphetamine in
Maryland. Moreover, Buensalida cannot claim that he was unaware
of the acts that occurred in Maryland. Finally, out of an
abundance of caution, the district court submitted the venue
issue to the jury, and the jury convicted Buensalida
nonetheless. Engle, 676 F.3d at 413. Accordingly, the district
court properly denied Buensalida’s motion to dismiss for lack of
venue.
As for the motion to transfer venue, the district
court properly considered the Platt factors before denying the
motion. Heaps, 39 F.3d at 483. Accordingly, the district court
did not abuse its discretion.
II.
We next address the district court’s denial of
Buensalida’s motion to suppress wiretap evidence. We review the
factual findings underlying a district court’s ruling on a
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motion to suppress for clear error and the legal conclusions de
novo. United States v. Kelly, 592 F.3d 586, 589 (4th Cir.
2010). Wiretaps should not be routinely employed, but rather
reserved for instances where necessary because normal
investigative techniques would be inadequate to expose the
crime. 18 U.S.C. § 2518(3)(c) (2006); United States v. Smith,
31 F.3d 1294, 1297 (4th Cir. 1994). The Government bears the
burden of showing “necessity,” however, this burden is not
great. Id. The Government’s showing should “be tested in a
practical and commonsense fashion that does not hamper unduly
the investigative powers of law enforcement agents.” Id.(internal quotation marks and citations omitted). We review the
district court’s finding of “necessity” for abuse of discretion.
United States v. Wilson, 484 F.3d 267, 281 (4th Cir. 2007).
The district court did not abuse its discretion in
finding “necessity.” The Government established necessity
through the wiretap application, which included a seventy-four
page affidavit, thoroughly explaining how investigators were
having difficulty infiltrating the conspiracy, that normal
investigative techniques would be problematic because video
surveillance could be easily detected and executing search
warrants would be premature, and that wiretaps would likely be
effective because members of the conspiracy used the target
telephones in furtherance of illicit narcotics activities.
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Considering the detailed showing contained in the wiretap
application, the finding of necessity was not an abuse of
discretion. Smith, 31 F.3d at 1297. The district court
therefore properly denied Buensalida’s motion to suppress
wiretap evidence.
III.
We next address whether the district court properly
admitted Buensalida’s confession. The district court denied
Buensalida’s motion to suppress his confession upon finding that
Buensalida voluntarily waived his Miranda rights. Miranda
warnings are required when a suspect is interrogated while in
custody. Miranda v. Arizona, 384 U.S. 436 (1966). Accordingly,
a statement taken in violation of Miranda is subject to
suppression. Id. However, a suspect may waive his Miranda
rights and voluntarily submit to interrogation, in which case
his custodial statements will be admissible. United States v.
Hicks, 748 F.2d 854, 859 (4th Cir. 1984). In determining
voluntariness, the critical question is whether the suspect’s
will has been “overborne” or his “capacity for self-
determination critically impaired.” United States v. Pelton,
835 F.2d 1067, 1071-72 (4th Cir. 1987). Nonetheless,
“government agents may validly make some representations to a
defendant or may discuss cooperation without rendering the
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resulting confession involuntary.” United States v. Shears, 762
F.2d 397, 401 (4th Cir. 1985).
The district court properly denied Buensalida’s motion
to suppress the confession. The evidence showed that Buensalida
was read his rights and signed a written waiver. Buensalida
claims his waiver and confession were involuntary because
officers told him if he did not cooperate he would face harsher
penalties. However, even assuming the officers made such a
statement, that would not render Buensalida’s confession
involuntary. Id. Because the evidence supports a finding that
Buensalida voluntarily waived his Miranda rights, the district
court properly admitted his confession. Hicks, 748 F.2d at 859.
IV.
We next review the sufficiency of the evidence
supporting Buensalida’s conspiracy conviction. We review de
novo the district court’s denial of a Rule 29 motion for
judgment of acquittal. United States v. Green, 599 F.3d 360,
367 (4th Cir. 2010). We review the sufficiency of the evidence
supporting a conviction by determining whether, in the light
most favorable to the Government, there is actual substantial
evidence in the record to support the conviction. Id.“Substantial 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.”
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Id. (internal quotation marks and citation omitted). Reversal
on grounds of insufficient evidence is appropriate only in cases
where the Government’s failure to present substantial evidence
is clear. Id.Buensalida was convicted of conspiracy to distribute
and possess with intent to distribute methamphetamine. To
obtain a conviction, the Government was required to prove:
(1) the existence of an agreement to distribute and possess with
intent to distribute methamphetamine (that is, a conspiracy);
“(2) the defendant’s knowledge of the conspiracy; and (3) the
defendant’s knowing and voluntary participation in the
conspiracy.” Id. A defendant may be a knowing and voluntary
member of a conspiracy without knowing its full scope or
participating in its full range of activities. United States v.
Burgos, 94 F.3d 849, 858-59 (4th Cir. 1996).
Buensalida contends the Government has failed to prove
his participation in a conspiracy in Maryland as opposed to a
conspiracy in California. However, the Government was not
required to prove venue as an element of the offense. See
Engle, 676 F.3d at 412 (venue is not a substantive element of a
crime and accordingly need only be proved by a preponderance of
the evidence). Regardless, the evidence clearly showed the
existence of a conspiracy to distribute methamphetamine in
Maryland and Buensalida’s knowing and voluntary participation
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therein. Green, 599 F.3d at 367. We therefore conclude that
substantial evidence supports Buensalida’s conspiracy
conviction.
V.
We next address Buensalida’s claim of ineffective
assistance of counsel. Buensalida raises various allegations of
deficient performance, but fails to allege prejudice.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Because
the record does not conclusively show ineffective assistance,
Buensalida’s claim is not cognizable on direct appeal. United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997).
VI.
We next review Buensalida’s challenge to the district
court’s findings regarding drug quantity. The Government must
prove the drug quantity attributable to the defendant by a
preponderance of the evidence. United States v. Carter, 300
F.3d 415, 425 (4th Cir. 2002). The district court may rely on
drug-related facts included in the presentence investigation
report unless the defendant shows that information is inaccurate
or unreliable. Id. A district court’s findings regarding drug
quantity are generally factual in nature, and therefore are
reviewed by this court for clear error. Id.“Sentencing judges may find facts relevant to
determining a Guidelines range by a preponderance of the
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evidence, so long as that Guidelines sentence is treated as
advisory and falls within the statutory maximum authorized by
the jury’s verdict.” United States v. Benkahla, 530 F.3d 300,
312 (4th Cir. 2008). The district court properly found by a
preponderance of the evidence that Buensalida was responsible
for over 500 grams of pure methamphetamine. Carter, 300 F.3d at
425. The court’s finding is supported by information contained
in the presentence investigation report; testimony from
investigating agents, a forensic chemist, and Buensalida’s
coconspirators; and by the physical evidence of the seized
methamphetamine. We therefore conclude that the district court
properly calculated Buensalida’s drug quantity. *
VII.
We next consider Buensalida’s challenge to the
application of a two-level sentencing enhancement for possessing
a dangerous weapon. Section 2D1.1(b)(1) of the Sentencing
Guidelines provides for a two-level enhancement where a
dangerous weapon, such as a firearm, was possessed. The
district court decides whether to apply the enhancement by a
*
We are not persuaded by Buensalida’s contention that the
district court’s finding that he was responsible for over 500
grams of pure methamphetamine conflicted with the jury’s
determination that he was responsible for fifty grams or more of
pure methamphetamine. The jury’s and the district court’s
findings are completely consistent.
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preponderance of the evidence, and its findings ordinarily will
be reversed only if clearly erroneous. United States v. Apple,
915 F.2d 899, 914 (4th Cir. 1990). However, because Buensalida
failed to raise the issue below, he will be entitled to relief
only upon a showing of plain error. United States v. Walker,
112 F.3d 163, 165 (4th Cir. 1997).
We conclude that the district court properly applied
the firearm enhancement. Ample evidence supported the
enhancement, including evidence that Buensalida conducted some
of the methamphetamine transactions from his home, that a
firearm was found at his home, and that cellphone pictures
established his possession of firearms during the time of the
conspiracy.
VIII.
We next address Buensalida’s challenge regarding his
statutory penalties. Buensalida challenges the increase in his
statutory penalties from five to forty years, to ten years to
life in prison, based on Apprendi v. New Jersey, 530 U.S. 466(2000). Buensalida’s statutory penalties were increased based
on a drug quantity of fifty or more grams of methamphetamine.
21 U.S.C. § 841(b)(1)(A)(viii). Under Apprendi, drug quantities
that increase a defendant’s statutory maximum sentence are
considered elements of the offense, and must be charged in the
indictment and found by the jury beyond a reasonable doubt. The
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Supreme Court has recently extended this rule to the context of
statutory minimum sentences. Alleyne v. United States, 133 S.
Ct. 2151, 2156 (2013). Here, the drug quantity was properly
charged in the indictment and found by the jury beyond a
reasonable doubt. Accordingly, the district court properly
applied the increased statutory penalties.
IX.
We next consider Buensalida’s claim of an unwarranted
sentencing disparity. Buensalida alleges he played the role of
a mere “middle-man,” that he has little prior criminal history
compared to his coconspirators, and that he unfairly received a
fifteen-year sentence while his coconspirators received six
years or less. However, a disparity between the sentences of a
defendant who pleads guilty and one who proceeds to trial is not
an unwarranted disparity. See United States v. Offill, 666 F.3d
168, 179 (4th Cir. 2011) (holding disparate sentence of
defendant who proceeded to trial reasonable), cert. denied, 132
S. Ct. 1936 (2012).
Construed liberally, Buensalida’s claim challenges the
reasonableness of his sentence. We review a sentence for
reasonableness, applying an abuse of discretion standard. Gall
v. United States, 552 U.S. 38, 46 (2007). We first review for
significant procedural error—including whether the district
court improperly calculated the Guidelines range, failed to
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consider the § 3553(a) factors, or failed to adequately explain
its sentence—and only if we find a sentence procedurally
reasonable will we then consider substantive reasonableness.
Gall, 552 U.S. at 51. Substantive reasonableness is determined
considering the totality of the circumstances, including the
extent of any variance from the Guidelines range. Id. A
sentence within or below a properly calculated Guidelines range
is presumed substantively reasonable. United States v. Susi,
674 F.3d 278, 289 (4th Cir. 2012).
Our review of the record reveals that the district
court properly considered the various § 3553(a) factors—
including the seriousness of Buensalida’s offense and the need
to avoid unwarranted sentencing disparities—prior to sentencing
Buensalida. Discerning no other procedural error, and
considering the totality of the circumstances including a
generous downward variance, we conclude that Buensalida’s
sentence is both procedurally and substantively reasonable.
X.
Finally, we consider Buensalida’s claim that the
district court improperly instructed the jury regarding drug
quantity. Buensalida contends the district court erred in only
instructing the jury to determine the amount of pure
methamphetamine—and not also the amount of a mixture containing
methamphetamine or, simply, “methamphetamine”—for which
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Buensalida was responsible. In reviewing an improper jury
instruction claim, the key issue is “whether, taken as a whole,
the instruction fairly states the controlling law.” United
States v. Cobb, 905 F.2d 784, 788-89 (4th Cir. 1990). The
defendant must raise his objection to a jury instruction in the
district court in order to fully preserve the issue for appeal;
if he does not, the issue is subject only to plain error review.
Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725,
731-32 (1993). Furthermore, under the “invited error” doctrine,
a defendant will not be permitted to challenge on appeal a jury
instruction he requested. United States v. Collins, 372 F.3d
629, 635 (4th Cir. 2004).
We discern no error in the contested jury instruction.
First, Buensalida failed to raise this objection below. Second,
he in fact proposed the contested jury instruction and
corresponding special verdict form. Finally, Buensalida fails
to appreciate that the Government presented evidence not only of
the amount of methamphetamine he distributed, but also of its
purity, thus allowing the jury to determine the amount of pure
methamphetamine for which he was responsible. The additional
instruction would therefore have been wholly superfluous.
Accordingly, Buensalida’s claim fails.
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XI.
In accordance with Anders, we have reviewed the entire
record in this case and found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. We deny
Buensalida’s motion for appointment of counsel. This court
requires that counsel inform Buensalida, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Buensalida requests that a petition be filed
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Buensalida. 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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