United States v. Gonzalez-Delgado , 195 F. App'x 120 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4726
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARCOS GONZALEZ-DELGADO, a/k/a Cesar Pineda,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CR-04-84)
Submitted: July 14, 2006 Decided: August 21, 2006
Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Terry F. Rose, Smithfield, North Carolina, for Appellant. Gretchen
C. F. Shappert, United States Attorney, 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Unpublished opinions are not binding precedent in this circuit.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:
Marcos Gonzalez-Delgado appeals his convictions and
sentence for conspiracy to distribute at least 1.5 kilograms of
methamphetamine, “ice,” in violation of 21 U.S.C. §§ 841 & 846
(2000), and one count of possession with intent to distribute more
than 1.5 kilograms of methamphetamine, “ice,” in violation of 21
U.S.C. § 841(a)(1) (2000). Finding no reversible error with
Gonzalez-Delgado’s convictions or sentence, we affirm.
Gonzalez-Delgado first claims his trial attorney was
constitutionally ineffective. Ineffective assistance claims are
not generally addressed on direct appeal. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). As the record does
not conclusively establish that his attorney provided ineffective
representation, we decline to consider this claim on direct appeal.
Any ineffective assistance of counsel claims that Gonzalez-Delgado
wishes to pursue may be raised in a timely motion for habeas relief
under 28 U.S.C. § 2255 (2000).
Gonzalez-Delgado next claims the district court erred in
denying his motion for a judgment of acquittal on the conspiracy
charge. We review the denial of a Rule 29 motion de novo. United
States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). A verdict
must be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it. Glasser v. United
States, 315 U.S. 60, 80 (1942). Substantial evidence is defined as
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“‘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.’” Alerre, 430 F.3d at 693(quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)
(en banc)). In resolving issues of substantial evidence, we do not
weigh evidence or reassess the factfinder’s assessment of witness
credibility. United States v. Wilson, 118 F.3d 228, 234 (4th Cir.
1997).
To prove conspiracy to distribute a controlled substance,
the Government must establish that: (1) two or more persons agreed
to distribute the substance; (2) the defendant knew of the
conspiracy; and (3) the defendant knowingly and voluntarily became
part of the conspiracy. United States v. Cropp, 127 F.3d 354, 361
(4th Cir. 1997); Burgos, 94 F.3d at 857. A defendant may be
convicted of conspiracy without knowing all the conspiracy’s
details, as long as he joins the conspiracy understanding its
unlawful nature and willfully joins in the plan on at least one
occasion. Burgos, 94 F.3d at 858. Once the existence of a
conspiracy is established, only a slight link between a defendant
and the conspiracy is needed to support a conviction. United
States v. Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992). Intent to
distribute may be inferred if the amount of drugs found exceeds an
amount normally associated with personal consumption. United
States v. Wright, 991 F.2d 1182, 1187 (4th Cir. 1993).
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We conclude the Government presented sufficient evidence
to sustain the jury’s verdict. The Government established
Gonzalez-Delgado transported over two kilograms of almost pure
methamphetamine from Georgia to North Carolina in a vehicle; such
a large quantity clearly demonstrates an intent to distribute. The
vehicle’s passenger, Jose Garcia-Rios, a friend of Gonzalez-
Delgado’s for years, testified that Gonzalez-Delgado informed him
that the vehicle contained drugs, and that they were transporting
the drugs. As a result of his involvement in these events, Garcia-
Rios pled guilty to conspiracy to distribute and possession with
the intent to distribute, and the jury heard his testimony
regarding his guilty pleas. Viewing the evidence against Gonzalez-
Delgado in totality and in the light most favorable to the
Government, it is clear that Gonzalez-Delgado knowingly and
voluntarily participated in the conspiracy to distribute this large
quantity of methamphetamine. The district court correctly denied
Gonzalez-Delgado’s motion for judgment of acquittal.
Gonzalez-Delgado next contends the district court erred
by sentencing him pursuant to the 2004 edition of the United States
Sentencing Guidelines Manual (“USSG”) instead of the 2003 edition,
and in denying his request to present testimony regarding his
request for a mitigating role adjustment. As explained below, we
reject both of these claims.
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Generally, a convicted defendant’s sentence is based upon
the guidelines manual “in effect on the date that the defendant is
sentenced.” USSG § 1B1.11(a) (2004). However, “[i]f the court
determines that use of the Guidelines Manual in effect on the date
that the defendant is sentenced would violate the ex post facto
clause of the United States Constitution, the court shall use the
Guidelines Manual in effect on the date that the offense of
conviction was committed.” USSG § 1B1.11(b)(1) (2004). Gonzalez-
Delgado claims the court should have sentenced him pursuant to the
2003 edition because, under that version, receipt of a mitigating
role adjustment yields a larger reduction to one’s base offense
than does the 2004 edition. However, the amendment is only
relevant if the defendant is entitled to a mitigating role
adjustment.
Gonzalez-Delgado argues that he should have received a
reduction for being a “minor” or “minimal” participant, as defined
by USSG § 3B1.2, cmt. (nn. 4 & 5) (2004). A defendant has the
burden of showing by a preponderance of the evidence that he had a
mitigating role in the offense. United States v. Akinkoye, 185
F.3d 192, 202 (4th Cir. 1999). In deciding whether the defendant
played a minor or minimal role, the “critical inquiry is not just
whether the defendant has done fewer ‘bad acts’ than his
co-defendants, but whether the defendant’s conduct is material or
essential to committing the offense.” United States v. Pratt, 239
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F.3d 640, 646 (4th Cir. 2001) (internal quotations and citations
omitted). The district court’s determination concerning the
defendant’s role in the offense is a factual issue reviewed for
clear error. United States v. Love, 134 F.3d 595, 606 (4th Cir.
1998).
The district court did not clearly err in denying
Gonzalez-Delgado a mitigating role adjustment. Gonzalez-Delgado
transported over two kilograms of almost pure methamphetamine
across state lines; the drugs were packaged, sealed, and hidden
with the utmost of caution to minimize the likelihood of detection
and seizure. Without Gonzalez-Delgado’s willing involvement, the
methamphetamine would not have been transported to North Carolina,
and thus would not have been available for distribution in that
state. Although a drug courier may, as a general matter, be
considered an appropriate defendant for a mitigating role
adjustment, see USSG § 3B1.2, cmt. (n.3) (2004), given the large
quantity and type of drug, the district court correctly determined
Gonzalez-Delgado’s role in this particular incident was material
and essential, not minor or minimal. Because Gonzalez-Delgado was
not entitled to the mitigating role adjustment, applying the 2004
amendment to § 2D1.1(a)(3) created no ex post facto problem; thus,
the district court committed no error in applying the 2004 version
of the guidelines.
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Lastly, we reject Gonzalez-Delgado’s argument that the
district court erred in denying him the opportunity to testify at
sentencing. While the sentencing guidelines require that the
district court ensure “the parties have an adequate opportunity to
present relevant information [on a disputed issue],” there is no
affirmative requirement that the court allow a defendant to
testify. USSG § 6A1.3, (cmt.) (2004); see Fed. R. Crim. P. 32
(i)(2) (“[t]he court may permit the parties to introduce evidence
on the objections.”) (emphasis added). Though the court did not
permit Gonzalez-Delgado to testify, the court allowed Gonzalez-
Delgado’s attorney to make a proffer of evidence as to Gonzalez-
Delgado’s claim that he was merely a drug courier. After hearing
the proffer, the court specifically rejected it as contradictory to
the evidence presented at trial. Thus, the court fully complied
with the dictates of Fed. R. Crim. P. 32.
For the foregoing reasons, we affirm Gonzalez-Delgado’s
convictions and the sentence imposed by 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
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