United States v. Jesus Pineda , 770 F.3d 313 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4555
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JESUS PINEDA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:12-cr-00066-BO-1)
Argued: September 16, 2014 Decided: October 29, 2014
Before NIEMEYER, WYNN, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Wynn and Judge Floyd joined.
ARGUED: Terry F. Rose, Smithfield, North Carolina, for
Appellant. Phillip Anthony Rubin, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
NIEMEYER, Circuit Judge:
Jesus Pineda was convicted on separate counts of
distributing cocaine on January 25, 2012, in violation of
21 U.S.C. § 841(a)(1); distributing cocaine on February 8, 2012,
again in violation of § 841(a)(1); possessing a firearm in
furtherance of the January 25 drug-trafficking crime, in
violation of 18 U.S.C. § 924(c)(1)(A); and possessing a sawed-
off shotgun on January 25, in violation of 26 U.S.C. §§ 5841,
5861(d), and 5871. The district court sentenced Pineda to 132
months’ imprisonment, and Pineda filed this appeal.
On appeal, Pineda challenges the sufficiency of the
evidence to convict him of possessing a firearm in furtherance
of a drug-trafficking crime. He also challenges the district
court’s application of several sentencing enhancements
including, mainly, enhancements based on its determination that
an uncharged transaction that took place on November 30, 2011,
constituted relevant conduct under U.S. Sentencing Guidelines
Manual § 1B1.3(a). For the reasons that follow, we affirm.
I
Based on a drug and firearm transaction that took place on
November 30, 2011, in Duplin County, North Carolina, ATF agents
began an investigation of Pineda that ultimately led to his
convictions in this case. During the November 30 transaction, a
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confidential informant (“CI”) purchased from Raul Sanchez a
stolen assault rifle and one ounce of cocaine, both of which
Sanchez had obtained earlier that day from Pineda. Pineda also
accompanied Sanchez to the transaction with the CI. On a later
date, Pineda approached the CI on his own to indicate that he
wanted to cut Sanchez out and to sell drugs directly to the CI.
The CI reported the conversation to the ATF case agent who was
supervising him, and the agent directed the CI to accept the
proposal and to engage in further transactions directly with
Pineda.
On January 25, 2012, the CI, while under police
surveillance, bought 54.31 grams of cocaine and a 12-gauge
sawed-off shotgun from Pineda for $2,550. The two men had
previously agreed that Pineda would also sell the CI a
.380 caliber handgun. Pineda brought the handgun to the
transaction and had it on his person, but when the CI asked
Pineda about it, Pineda refused to sell it, indicating that it
was “the only piece I’ve got.” He nonetheless promised to sell
the handgun to the CI once he had obtained another gun.
Two weeks later, on February 8, 2012, the CI, while again
under police surveillance, purchased 54.60 grams of cocaine from
Pineda, as well as the .380 caliber handgun. The two men ended
the transaction by agreeing that they would arrange another deal
once Pineda received a new supply of cocaine. And, a few days
3
later, Pineda texted the CI a picture of another handgun, and
the two discussed the sale of that weapon as well.
Pineda was indicted and convicted by a jury on two counts
charging him with the distribution of cocaine on January 25 and
February 8, on one count charging him with possession of a
firearm in furtherance of the January 25 drug transaction, and
on one count charging him with possession of a sawed-off
shotgun.
Prior to sentencing, the probation officer prepared a
presentence report, in which she included, as relevant conduct,
the November 30, 2011 transaction. In doing so, the probation
officer relied on a statement that Raul Sanchez gave to law
enforcement officers regarding the transaction. The presentence
report accordingly recommended including in the drug quantity
calculation the drug weight that was involved in the November 30
transaction and holding Pineda responsible for the stolen
assault rifle that was also involved in that transaction,
resulting in enhancements for committing crimes involving three
firearms and for possessing a stolen firearm. The presentence
report also recommended an enhancement for engaging in the
trafficking of firearms. Application of the three enhancements
increased Pineda’s offense level for sentencing from 18 to 26.
Pineda objected to the enhancements, but the district court
overruled his objections.
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Combining Pineda’s offense level of 26 with his criminal
history category of I resulted in a Guidelines range of 63 to
78 months’ imprisonment, plus a consecutive term of 60 months’
imprisonment for possession of a firearm in furtherance of a
drug-trafficking offense, as required by 18 U.S.C.
§ 924(c)(1)(A)(i). The court sentenced Pineda to a term of
72 months’ imprisonment for his drug convictions and his sawed-
off shotgun conviction and a consecutive term of 60 months’
imprisonment for his § 924(c) conviction, for a total of
132 months’ imprisonment.
This appeal followed.
II
Pineda contends first that the evidence was insufficient to
support his conviction for possessing a firearm in furtherance
of a drug-trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A). While he acknowledges that the evidence was
sufficient to prove that he possessed a firearm during his sale
of cocaine to the CI on January 25, 2012, he argues that the
evidence was insufficient to show that his possession was “in
furtherance of” the drug transaction.
We will reject a sufficiency-of-the-evidence challenge if
“any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United States
5
v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002) (quoting United
States v. Myers, 280 F.3d 407, 415 (4th Cir. 2002)) (internal
quotation marks omitted).
“[Section] 924(c) requires the government to present
evidence indicating that the possession of a firearm furthered,
advanced, or helped forward a drug trafficking crime.” Lomax,
293 F.3d at 705. And there are “numerous ways” that a firearm
can function in those roles:
For example, a gun [can] provide a defense against
someone trying to steal drugs or drug profits, or it
might lessen the chance that a robbery would even be
attempted. Additionally, a gun might enable a drug
trafficker to ensure that he collects during a drug
deal. And a gun [can] serve as protection in the
event that a deal turns sour. Or it might prevent a
transaction from turning sour in the first place.
Id.
The evidence in this case shows that during the drug
transaction on January 25, Pineda took out a .380 caliber
handgun and placed it underneath his leg while conducting the
drug transaction with the CI. When the CI inquired about
purchasing the gun, as the two had previously agreed, Pineda
refused to sell it, explaining that it was “the only piece” that
he owned at the time and that if he sold it, he would not have
any way to protect himself. He stated that he would sell the
gun to the CI once he had “[gotten] another piece.”
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While merely having a firearm “accessible and ready for
use” can suggest that a defendant is using it for protection or
to ensure that a deal goes smoothly, United States v. Jenkins,
566 F.3d 160, 164 (4th Cir. 2009), the evidence in this case was
much stronger. The jury could undoubtedly have concluded that
Pineda considered the firearm to be critical to his drug-
trafficking activities, including the drug deal that he was
conducting with the CI that day. See United States v. Tresvant,
677 F.2d 1018, 1021 (4th Cir. 1982) (noting that, in reviewing a
challenge to the sufficiency of the evidence, “[w]e must
consider circumstantial as well as direct evidence, and allow
the government the benefit of all reasonable inferences from the
facts proven to those sought to be established”). We therefore
conclude that there was substantial evidence to support the
jury’s finding that Pineda possessed a firearm in furtherance of
the January 25, 2012 drug transaction.
III
Pineda next contends that, in sentencing him, the district
court erred by treating his alleged participation in the
transaction that occurred on November 30, 2011, as “relevant
conduct” under U.S.S.G. § 1B1.3(a). Because the court found
that transaction to be relevant conduct, it enhanced Pineda’s
sentence by increasing the amount of drugs for which he was held
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accountable and by taking into account the stolen assault rifle
involved in the deal. Specifically, because of that firearm,
Pineda received two enhancements that otherwise would not have
applied -- an enhancement of two levels for committing an
offense that involved at least three firearms, under U.S.S.G.
§ 2K2.1(b)(1)(A), and an enhancement of two levels because one
of the firearms was stolen, under § 2K2.1(b)(4)(A).
To challenge the court’s inclusion of the November 30
transaction as relevant conduct, Pineda makes two separate
arguments -- first, an evidentiary challenge that evidence of
the transaction came in through the hearsay statement made by
Raul Sanchez to law enforcement, a statement that, he contends,
did not have sufficient indicia of reliability; and second, a
substantive challenge that the November 30 transaction was not
factually “part of the same course of conduct” as the
transactions that took place on January 25 and February 8.
As to his evidentiary challenge, Pineda argues that
Sanchez’s statement to law enforcement lacked sufficient
reliability:
Raul Sanchez did not testify at the trial of this
matter. Raul Sanchez did not testify at the
sentencing hearing. There is no evidence who provided
the statement to the Office of Probation. The
district court accepted as relevant conduct that
someone somewhere gave the Office of Probation a
statement that says someone by the name of Raul
Sanchez says Mr. Pineda went with him on November 30,
2011 when he, Raul Sanchez, sold an ounce of cocaine
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and a gun that he, Raul Sanchez, says was stolen.
There is no other evidence that the act took place,
that the amount of cocaine is the amount Sanchez
contends there was or that a firearm was present or
that such a firearm was stolen other than this
statement.
It is well established that, at sentencing, the district
court “may consider relevant information without regard to its
admissibility under the rules of evidence applicable at trial,
provided that the information has sufficient indicia of
reliability to support its probable accuracy.” U.S.S.G.
§ 6A1.3(a). The district court’s determination that evidence is
sufficiently reliable to be considered at sentencing is reviewed
for an abuse of discretion, United States v. Gilliam, 987 F.2d
1009, 1014 (4th Cir. 1993), and its factual findings are
reviewed for clear error, United States v. Alvarado Perez, 609
F.3d 609, 612 (4th Cir. 2010).
While the government did not present any witnesses at the
sentencing hearing, the district court was able to rely on trial
testimony that corroborated significant aspects of Sanchez’s
statement. Specifically, the ATF case agent testified at trial
that when he took over the investigation from one of his
colleagues in December 2011, he learned that his predecessor had
developed a CI who “had purchased a stolen firearm and an amount
of cocaine from a gentleman named Raul Sanchez” and that “Pineda
was present during the first transaction” between Sanchez and
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the CI. The case agent further testified that it was this
transaction that led him to begin his investigation into Pineda.
Similarly, the CI testified at trial that he had first met
Pineda through Sanchez, describing how Sanchez, Pineda, and
another individual came to his house because Sanchez was “trying
to sell [him] an assault rifle.” We conclude that this trial
testimony provides ample “indicia of reliability to support
[the] probable accuracy” of the statement by Sanchez that is
contained in the presentence report, U.S.S.G. § 6A1.3(a), and
that the district court did not err when it found that the
government had proved, by a preponderance of the evidence, that
Pineda had participated in the sale of cocaine and a stolen
rifle on November 30, 2011.
Pineda’s primary argument, however, is that, even if
Sanchez’s statement is accepted as true, his conduct on
November 30 did not qualify as “relevant conduct” because it was
not “part of the same course of conduct or common scheme or plan
as the offense of conviction,” as required by U.S.S.G.
§ 1B1.3(a)(2). Pineda argues that the mere fact that the
November 30 transaction and the two controlled purchases on
January 25 and February 8 all involved the sale of cocaine and
firearms “is not enough of a similarity to make the conduct of
November 30, 2011 relevant conduct to the offenses” for which he
was convicted. Pineda emphasizes that he played a different
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role in the November 30 transaction than in the controlled
purchases and argues that there was no evidence showing that the
three transactions were part of a larger pattern of illegal
activity. In short, he asserts that what happened on
November 30 was an “isolated, unrelated event[] that happen[s]
to only be similar in kind.”
The application note accompanying the Guideline defining
“relevant conduct” explains that “two or more offenses . . .
constitute part of a common scheme or plan” if they are
“substantially connected to each other by at least one common
factor, such as common victims, common accomplices, common
purpose, or similar modus operandi.” U.S.S.G. § 1B1.3 cmt.
n.9(A) (emphasis added). But even “[o]ffenses that do not
qualify as part of a common scheme or plan may nonetheless
qualify as part of the same course of conduct if they are
sufficiently connected or related to each other as to warrant
the conclusion that they are part of a single episode, spree, or
ongoing series of offenses.” Id. § 1B1.3 cmt. n.9(B) (emphasis
added). “Significant factors used to determine whether offenses
are part of the same course of conduct ‘include the degree of
similarity of the offenses, the regularity (repetitions) of the
offenses, and the time interval between the offenses.’” United
States v. Hodge, 354 F.3d 305, 313 (4th Cir. 2004) (quoting
U.S.S.G. § 1B1.3 cmt. n.9(B)). “When one of the above factors
11
is absent, a stronger presence of at least one of the other
factors is required.” U.S.S.G. § 1B1.3 cmt. n.9(B).
Where, as here, the defendant “does not contend that the
district court applied the incorrect legal rule,” but instead
challenges “the factual analysis the district court conducted in
applying the relevant conduct Guideline,” “we review the court’s
decision for clear error.” United States v. McVey, 752 F.3d
606, 610 (4th Cir. 2014).
Applying these principles, we conclude that the district
court did not clearly err in finding that Pineda’s involvement
in the November 30 transaction was sufficiently related to the
two controlled purchases to constitute “relevant conduct” for
sentencing purposes. In all three transactions, Pineda was the
seller of cocaine and a firearm, and therefore the transactions
have a relatively high degree of similarity. All of the
transactions occurred within two-and-a-half months of each
other, therefore indicating that they occurred with a fair
degree of regularity. And, most significantly, Pineda’s
involvement on November 30 led directly to the controlled
purchases. As a result of the November 30 transaction -- where
Pineda dealt with Sanchez who, in turn, dealt with the CI --
Pineda met the CI, and they later agreed to bypass Sanchez for
further deals. In short, the November transaction was the
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beginning of a course of conduct that continued -- just without
Sanchez as a go-between -- in January and February.
Based on this evidence, we conclude that the three
transactions were “sufficiently connected or related to each
other as to warrant the conclusion that they [were] part
of . . . [an] ongoing series of offenses,” U.S.S.G. § 1B1.3 cmt.
n.9(B), and therefore that the district court did not err in
treating Pineda’s participation in the November 30, 2011
transaction as “relevant conduct” at sentencing.
IV
Pineda challenges separately his two-level enhancement
under U.S.S.G. § 2K2.1(b)(1)(A) for committing an offense that
involved three or more firearms, contending that this
enhancement cannot be applied in conjunction with his sentence
for violating 18 U.S.C. § 924(c)(1)(A). He argues that applying
the enhancement to the drug-trafficking violation that was the
predicate offense for his § 924(c) conviction creates
impermissible double counting, insofar as the firearm that was
the basis for his § 924(c) conviction cannot also be counted
when determining the number of weapons involved for purposes of
the § 2K2.1(b)(1) enhancement. He notes that, “[w]ithout the
firearm associated with the § 924(c) conviction, there [were]
less than three firearms involved in the instant matter.”
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“Double counting occurs when a provision of the Guidelines
is applied to increase punishment on the basis of a
consideration that has been accounted for by application of
another Guideline provision or by application of a statute.”
United States v. Reevey, 364 F.3d 151, 158 (4th Cir. 2004).
“Double counting is generally authorized unless the Guidelines
expressly prohibit it.” Id. Application Note 4 to § 2K2.4
provides a double-counting prohibition in the context of
§ 924(c) convictions:
If a sentence under th[e] guideline [governing
§ 924(c) offenses] is imposed in conjunction with a
sentence for an underlying offense, do not apply any
specific offense characteristic for possession,
brandishing, use, or discharge of an explosive or
firearm when determining the sentence for the
underlying offense. A sentence under this guideline
accounts for any explosive or weapon enhancement for
the underlying offense of conviction, including any
such enhancement that would apply based on conduct for
which the defendant is accountable under § 1B1.3
(Relevant Conduct).
U.S.S.G. § 2K2.4 cmt. n.4.
The question here therefore is whether it is double
counting prohibited by the Guidelines -- specifically,
Application Note 4 to § 2K2.4 -- to impose a consecutive
sentence for possession of a firearm in furtherance of a drug-
trafficking offense, in violation of § 924(c)(1)(A), and to
enhance the offense level for the underlying drug crime on the
14
ground that the offense (including relevant conduct) involved
three or more firearms.
In this case, the offense underlying Pineda’s § 924(c)
conviction was his distribution of cocaine to the CI during the
January 25, 2012 controlled purchase -- a crime for which he was
separately convicted. In determining his Guidelines range, the
probation officer grouped that offense with his drug-trafficking
conviction based on the February 8 transaction and his
conviction for possessing a sawed-off shotgun and determined
that the operable Guideline for that group was § 2K2.1, the
Guideline governing the unlawful possession of firearms. As
such, when determining Pineda’s offense level under § 2K2.1, the
district court was prohibited from applying any specific offense
characteristic for “possession, brandishing, use, or discharge”
of a firearm. U.S.S.G. § 2K2.4 cmt. n.4.
But U.S.S.G. § 2K2.1(b)(1)’s enhancement based on the
number of firearms involved in the offense does not qualify as
an enhancement “for possession, brandishing, use, or discharge”
of a firearm. U.S.S.G. § 2K2.4 cmt. n.4 (emphasis added).
Application Note 4 to § 2K2.4 makes clear that a sentence for
violating § 924(c) functions as a weapon enhancement, and so no
similar weapon enhancement should be applied when determining
the sentence for the underlying offense. An enhancement based
on the sheer number of firearms involved in the offense,
15
however, is not the same type of weapon enhancement as the one
provided for in § 924(c). Rather, it reflects the Sentencing
Commission’s recognition that a defendant whose offense involved
three or more firearms is more dangerous than a defendant who
was only accountable for one or two firearms -- just like
culpability is heightened if any of the firearms were stolen or
had an altered or obliterated serial number, U.S.S.G.
§ 2K2.1(b)(4). By contrast, § 924(c)(1)(A) punishes a defendant
for putting a firearm to a prohibited purpose -- namely,
possessing it in furtherance of a crime of violence or a drug-
trafficking crime or using or carrying it during and in relation
to such a crime, with additional penalties attaching if the
firearm was brandished or discharged. See 18 U.S.C.
§ 924(c)(1)(A). Whether the defendant was accountable for one
firearm or ten, however, is completely irrelevant to the
commission of the § 924(c) offense.
Thus, because § 924(c) pertains to particular unlawful uses
of a firearm while § 2K2.1(b)(1) pertains to the number of
firearms involved, these two enhancements punish different types
of conduct. We therefore conclude that enhancing a defendant’s
offense level based on the number of weapons involved in the
offense underlying his § 924(c) conviction does not constitute
impermissible double counting under the Guidelines. Accord
United States v. Terrell, 608 F.3d 679, 683-84 (10th Cir. 2010)
16
(holding that because “the number of weapons involved in the
underlying offense to a § 924(c) conviction is a separate type
of offense conduct than that punished by § 924(c) itself,” “the
district court did not engage in double-counting . . . when it
applied [an] . . . increase under § 2K2.1(b)(1)(A)” in
conjunction with the sentence for violating § 924(c)). But see
United States v. Vincent, 20 F.3d 229, 240-41 (6th Cir. 1994)
(holding, without discussion, that the district court erred by
applying the number-of-weapons enhancement to an offense
underlying the defendant’s § 924(c) conviction).
V
Finally, Pineda contends that the district court erred in
applying a four-level enhancement under § 2K2.1(b)(5) on the
ground that he “engaged in the trafficking of firearms.” In
support of this challenge, Pineda contends that the
§ 2K2.1(b)(5) enhancement only applies if a defendant
transferred two or more firearms to another individual
simultaneously, whereas he only sold one firearm at a time.
There is no indication, however, that the Sentencing
Commission intended the § 2K2.1(b)(5) enhancement to apply only
if the defendant transferred multiple firearms on one occasion.
The commentary to § 2K2.1 specifies that the firearm-trafficking
enhancement applies as long as two requirements are satisfied.
17
First, the defendant must have “transported, transferred, or
otherwise disposed of two or more firearms to another
individual, or received two or more firearms with the intent to
transport, transfer, or otherwise dispose of firearms to another
individual.” U.S.S.G. § 2K2.1 cmt. n.13(A)(i). And second, the
defendant must have “kn[own] or had reason to believe that such
conduct would result in the transport, transfer, or disposal of
a firearm to an individual -- (I) whose possession or receipt of
the firearm would be unlawful; or (II) who intended to use or
dispose of the firearm unlawfully.” Id. § 2K2.1 cmt.
n.13(A)(ii).
Both requirements are satisfied here. Pineda transferred
two or more firearms to the CI, and he “had reason to believe”
that the CI “intended to use or dispose of the firearm[s]
unlawfully,” since he was simultaneously selling cocaine to the
CI with the understanding that the CI’s intent was to distribute
it to others. It is simply irrelevant to the trafficking
enhancement that Pineda sold the CI one firearm on one occasion
and a second firearm a few weeks later, as opposed to selling
him both firearms in a single transaction.
We thus conclude that the district court properly imposed a
four-level enhancement under § 2K2.1(b)(5) on the ground that
Pineda “engaged in the trafficking of firearms.”
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The judgment of the district court is
AFFIRMED.
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