United States v. Portillo ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4544
HECTOR DAVID PORTILLO,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4545
LUIS BONILLA,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-95-522-A)
Submitted: February 11, 1997
Decided: March 27, 1997
Before WILKINS and MICHAEL, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Suzanne Little, Alexandria, Virginia; Alan H. Yamamoto, Alexandria,
Virginia, for Appellants. Helen F. Fahey, United States Attorney, Jay
Apperson, Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Appellants Hector David Portillo and Luis Bonilla were convicted
of conspiracy to possess with intent to distribute and to distribute five
kilograms or more of cocaine in violation of 21 U.S.C. § 846 (1994).
On appeal, they argue that the evidence was insufficient to support the
finding that they were guilty of conspiracy and that the district court
erred in calculating the amount of drugs attributable to them. Finding
no error, we affirm.
A Government informant approached Bonilla in October 1995
about purchasing cocaine, allegedly for the informant's brother-in-law
who wanted to start distributing the drug in North Carolina. Bonilla
contacted Portillo, and a price and quantity were eventually negoti-
ated. On November 1, the day the transaction was to take place, the
supplier became nervous and postponed the deal until the next day.
The transaction failed to occur the following day, and the supplier
told Portillo that he was no longer interested in supplying the drugs.
Portillo contacted his brother-in-law, Gerber Villalobos, about sup-
plying the drugs, but Villalobos suggested that they package flour to
look like cocaine and steal the informant's money. A meeting was set
for November 21, 1995. Portillo, Bonilla, and Villalobos were
arrested when they attempted to sell the flour to the informants. No
actual cocaine was ever distributed.
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After their arrests, Portillo and Bonilla were advised of their rights
and signed written waiver forms. They then provided statements in
which they admitted that the original deal was for real cocaine and
that the scheme to sell flour instead of cocaine did not happen until
after the first supplier backed out. At trial, Portillo and Bonilla
changed their story and claimed that they intended to substitute the
flour from the beginning and that they never intended to sell real
cocaine.
Portillo and Bonilla were prosecuted and convicted on a single con-
spiracy charge arising out of the failed transactions that culminated on
November 1 and 2, 1995. The court dismissed Counts 2 and 3 of the
indictment upon request of the government. Neither Portillo nor
Bonilla were prosecuted or convicted for any offenses involving the
"flour" transaction of November 21, 1995.
On direct appeal of a criminal conviction, a "verdict must be sus-
tained 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). In the present case, we find that the evidence was suffi-
cient to support the convictions.
This court has held that "a variety of conduct, apart from selling
narcotics, can constitute participation in a conspiracy sufficient to sus-
tain a conviction." United States v. Burgos , 94 F.3d 849, 859 (4th Cir.
1996) (en banc), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3586 (U.S.
Feb. 24, 1997) (No. 96-6868). We find that even if Portillo and
Bonilla were merely facilitators, as they now claim, this conduct
would fall into the above category. In addition, we find that the Gov-
ernment presented evidence that Portillo and Bonilla intended to sell
real cocaine during the time period charged, notwithstanding their tes-
timony to the contrary. This aspect of the case boiled down to a credi-
bility determination, which the jury resolved. Burgos, 94 F.3d at 868,
citing United States v. Bailey, 444 U.S. 394, 414-15 (1980). More-
over, despite their attempts to argue to the contrary, Portillo and
Bonilla were indicted and convicted of the events leading up to the
two failed attempts to distribute actual cocaine on November 1 and
2.
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We also affirm the district court's determination concerning the
amount of drugs attributable to Portillo and Bonilla for sentencing.
This factual determination will be upheld absent clear error. United
States v. Lamarr, 75 F.3d 964, 972 (4th Cir.), cert. denied, ___ U.S.
___, 65 U.S.L.W. 3309 (U.S. Oct. 21, 1996) (No. 95-9398). We find
that the record supports the district court's decision. The undisputed
evidence showed that Portillo and Bonilla agreed to sell five kilo-
grams of cocaine, and the jury rejected their claim that they only
intended to sell flour. "In an offense involving an agreement to sell
a controlled substance, the agreed-upon quantity of the controlled
substance shall be used to determine the offense level unless the sale
is completed and the amount delivered more accurately reflects the
scale of the offense." USSG § 2D1.1, comment. (n.12).* We find that
the district court reasonably concluded that Portillo and Bonilla had
the ability to obtain at least this amount of cocaine.
We therefore affirm Appellants' convictions and sentences. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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*United States Sentencing Commission, Guidelines Manual (Nov.
1995).
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