United States v. Romero ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4826
CIRILO LOPEZ ROMERO,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-00-362)
Submitted: April 29, 2002
Decided: June 6, 2002
Before WILLIAMS and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Neil M. Nameroff, NEIL M. NAMEROFF, P.A., Miami, Florida, for
Appellant. Anna Mills Wagoner, United States Attorney, Sandra J.
Hairston, Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee.
2 UNITED STATES v. ROMERO
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Cirilo Lopez Romero pleaded guilty to one count of conspiracy to
distribute in excess of five kilograms of cocaine, in violation of 21
U.S.C.A. §§ 841(a)(1), 846 (West 1999 & Supp. 2001), and one count
of conspiracy to commit money laundering, in violation of 18
U.S.C.A. § 1956(a)(1)(A) (West 2000 & Supp. 2001). He appeals his
sentence, specifically challenging the enhancement of his offense
level under the Sentencing Guidelines* for obstruction of justice and
possession of a dangerous weapon. We conclude that the district court
correctly applied these enhancements, and we therefore affirm.
Romero first contends the district court erred in finding that he
willfully obstructed justice when he failed to disclose a 1980 misde-
meanor conviction in the Southern District of Texas for illegal entry.
Section 3C1.1 of the Sentencing Guidelines provides for a two level
increase in a defendant’s offense level "[i]f (A) the defendant will-
fully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice during the course of the investigation, prose-
cution, or sentencing of the instant offense of conviction." U.S.S.G.
§ 3C1.1. "[P]roviding materially false information to a probation offi-
cer in respect to a presentence or other investigation for the court" is
specifically listed as an example of conduct for which the enhance-
ment is appropriate. U.S.S.G. § 3C1.1, comment. (n.4(h)). "Material"
information is defined as "information that, if believed, would tend to
influence or affect the issue under determination." U.S.S.G. § 3C1.1,
comment. (n.6). Whether information is material is a factual matter
determined by the district court, and the district court’s determination
is reviewed by this court under the clearly erroneous standard. See
United States v. Hicks, 948 F.2d 877, 886 (4th Cir. 1991).
*U.S. Sentencing Guidelines Manual (2000).
UNITED STATES v. ROMERO 3
The district court concluded that Romero’s testimony at sentencing
that he did not intend to deceive the probation officer when he failed
to disclose the prior conviction was not worthy of belief. Evaluation
of witness credibility is reserved to the finder of fact and is generally
not subject to review by this court. See United States v. Saunders, 886
F.2d 56, 60 (4th Cir. 1989). Moreover, the district court’s conclusion
that Romero’s prior conviction was a material fact is not clearly erro-
neous, as we have held that "[t]he threshold for materiality . . . is
‘conspicuously low.’" United States v. Gormley, 201 F.3d 290, 294
(4th Cir. 2000) (quoting United States v. Dedeker, 961 F.2d 164, 167
(11th Cir. 1992)). Accordingly, the district court acted within its dis-
cretion by concluding that Romero willfully provided a materially
false answer to the probation officer’s question about his prior convic-
tions and correctly applied the § 3C1.1 enhancement.
Romero next contends the district court improperly enhanced his
offense level for possession of a firearm in connection with the drug
trafficking offense. A two-level increase applies if a dangerous
weapon is present during a drug trafficking crime "unless it is clearly
improbable that the weapon was connected with the offense."
U.S.S.G. § 2D1.1(b)(1), comment. (n.3). The district court’s determi-
nation that a firearm or other weapon was present and justifies the
enhancement is a factual question that is reviewed for clear error.
United States v. Apple, 915 F.2d 899, 914 (4th Cir. 1990).
After Romero’s drug distribution organization was discovered, a
search of a house used by the organization for storage of drugs in
Houston, Texas, resulted in the seizure of ten kilograms of cocaine,
$42,300, and a 9mm handgun. A subsequent search of Romero’s
North Carolina residence yielded a small quantity of marijuana and
four firearms. The district court found that Romero falsely testified
that the firearms found in his residence were not connected to his drug
distribution conspiracy and that he was unaware that co-conspirators
in Houston possessed firearms. The district court noted that Romero’s
organization distributed drugs in North Carolina for several years and
involved numerous individuals. Moreover, Romero admitted that
drugs transported from Houston arrived at his North Carolina resi-
dence before being stored at other houses. This evidence is sufficient
to support the district court’s findings that the firearms found in
Romero’s North Carolina residence were possessed for protection of
4 UNITED STATES v. ROMERO
the drug distribution organization and its profits and that the firearm
found in the Houston house was reasonably foreseeable to Romero.
See United States v. Kimberlin, 18 F.3d 1156, 1159-60 (4th Cir.
1994); United States v. White, 875 F.2d 427, 433 (4th Cir. 1989).
Accordingly, we conclude that the district court properly applied the
§ 2D1.1(b)(1) enhancement to Romero’s offense level.
We therefore affirm Romero’s conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the material before the court, and argument
would not aid the decisional process.
AFFIRMED