United States v. Gallarza , 84 F. App'x 349 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4758
EDWARD GALLARZA,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
Samuel G. Wilson, Chief District Judge.
(CR-01-58)
Submitted: November 26, 2003
Decided: January 7, 2004
Before WILLIAMS, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Keith E. Golden, KRUPMAN, GOLDEN, MEIZLISH, MARKS &
WITTENBERG, L.L.P., Columbus, Ohio, for Appellant. John L.
Brownlee, United States Attorney, Jean B. Hudson, Assistant United
States Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. GALLARZA
OPINION
PER CURIAM:
Edward Gallarza was convicted by a jury of conspiracy to possess
with intent to distribute more than fifty grams of crack cocaine, in
violation of 21 U.S.C. § 846 (2000), and sentenced to 324 months
imprisonment. Gallarza appeals, claiming that the evidence was insuf-
ficient to support his conviction, and that the district court erred at
sentencing when determining the amount of drugs attributable to him
and by increasing his offense level for his role in the offense. For the
reasons that follow, we affirm.
The evidence, when viewed in the light most favorable to the gov-
ernment, see United States v. Burgos, 94 F.3d 849, 854 (4th Cir.
1996) (en banc), established the following. In the Spring of 1999, the
RUSH Drug Task Force, comprised of the Harrisonburg Police
Department, Rockingham County Sheriff’s Department, the Virginia
State Police, and the United States Drug Enforcement Agency, uncov-
ered a large cocaine trafficking conspiracy operating in Harrisonburg,
Virginia. The conspiracy consisted of three connected drug organiza-
tions and involved transportation of large quantities of cocaine pow-
der from New York City to Virginia, where the cocaine would be
cooked into crack cocaine. Gallarza was considered a mid-level
dealer, acting as driver and translator for Jonathan Jimenez, a leader
of one of the three organizations. Nelson Guerrero, one of the thirteen
indicted co-conspirators, testified that he supplied Gallarza with
approximately 400 grams of crack cocaine to sell over the course of
two months in 1999. Louis Porter testified that he met Gallarza
through Carlos Perez ("Shorty"), who operated as a supervisor of sev-
eral mid-level distributors, including Gallarza. According to Porter,
Gallarza traveled to New York to pick up cocaine "at least once every
two weeks."
Pedro Guerrero, a street dealer, testified that he, along with Gal-
larza and two others, would receive one-half to one-kilo quantities of
powder cocaine which was cooked into crack by Louis Matos, and
given to Guerrero, Gallarza, and the other distributors to sell in Harri-
sonburg. Guerrero stated that the group would sell 500 grams of crack
in less than a week.
UNITED STATES v. GALLARZA 3
Louis Matos testified that he met Gallarza in 1998 and that he,
along with Gallarza, transported 400 grams of cocaine from New
York to Harrisonburg each week for approximately two to three
years. The powder was cooked into crack—by Matos usually—and
sold by Gallarza and a number of other dealers. Matos stated that, on
one occasion, he saw Gallarza with 400 grams of crack cocaine.
Nathaniel McDaniel testified that Shorty would stay at his house
when he (Shorty) was in town and would sell crack cocaine from
McDaniel’s house. McDaniel witnessed Shorty give Gallarza $3000
to $4000 to go to New York and purchase cocaine. According to
McDaniel, Gallarza returned with three or four balls of crack cocaine
the size of baseballs, which Gallarza and Shorty cut up for sale.
McDaniel testified that Gallarza sold crack and powder cocaine on a
daily basis. Finally, Sergeant Chris Rush of the Harrisonburg Police
Department testified that on June 19, 1999, he arrested Gallarza for
possession with intent to distribute approximately fourteen grams of
crack cocaine. Gallarza told Rush that he obtained the cocaine from
Shorty and that he had been buying approximately fifteen grams of
crack cocaine on a weekly basis from Shorty for the last three months.
At sentencing, the district court attributed 1.6 kilograms of crack
cocaine to Gallarza, resulting in a base offense level of 38. The court
also gave Gallarza a two-level enhancement for his role in the
offense, pursuant to U.S. Sentencing Guidelines Manual § 3B1.1(c)
(2000). Based on a total offense level of 40 and a criminal history cat-
egory of II, the applicable guideline range was 324 to 405 months
imprisonment. The court sentenced Gallarza to 324 months. He noted
a timely appeal.
Gallarza first claims that the district court erred in denying his
motion for judgment of acquittal, Fed. R. Crim. P. 29, because the
evidence presented at trial was insufficient to prove that he partici-
pated in a conspiracy. This court reviews the denial of a motion for
acquittal under a sufficiency of evidence standard. See Fed. R. Crim.
P. 29; Glasser v. United States, 315 U.S. 60, 80 (1942); United States
v. Romer, 148 F.3d 359, 364 (4th Cir. 1998). We have reviewed the
record and find that the evidence was sufficient to support the jury’s
verdict. Accordingly, the district court did not err in denying Gal-
larza’s Rule 29 motion.
4 UNITED STATES v. GALLARZA
Next, Gallarza challenges the district court’s finding that he was
responsible for 1.6 kilograms of crack cocaine. This court reviews the
district court’s calculation of the quantity of drugs attributable to a
defendant for sentencing purposes for clear error. United States v.
Randall, 171 F.3d 195, 210 (4th Cir. 1999). The district court adopted
the quantity of crack attributable to Gallarza in the presentence report
based on the testimony at his trial. Gallarza argues that, under
Apprendi v. New Jersey, 530 U.S. 466 (2000), he should have only
been held accountable for the fifty grams of crack cocaine alleged in
the indictment and that, in any event, the district court’s findings were
based on unreliable testimony of alleged co-conspirators. As to Gal-
larza’s first argument, a particular sentence does not implicate the rule
announced in Apprendi "‘unless it exceeds a default statutory maxi-
mum.’" United States v. Johnson, 335 F.3d 589, 591 (7th Cir.) (quot-
ing United States v. Knox, 301 F.3d 616, 620 (7th Cir. 2002)), cert.
denied, ___ S. Ct. ___, 2003 WL 22303874 (2003). Because Gal-
larza’s sentence was less than the statutory maximum penalty for fifty
grams (life imprisonment), the district court did not err by attributing
more crack cocaine to him than was specified in the indictment. As
to Gallarza’s second argument challenging the district court’s reliance
on the testimony of alleged co-conspirators, credibility determinations
are within the province of the sentencing court and will not be dis-
turbed unless clearly erroneous. See United States v. Fisher, 58 F.3d
96, 100 (4th Cir. 1995); United States v. Choate, 12 F.3d 1318, 1321
(4th Cir. 1993). Gallarza has not shown that the district court clearly
erred by relying on the testimony at issue.
Finally, Gallarza claims that the district court clearly erred by
increasing his offense level by two levels for being a manager or
leader in the conspiracy. A district court’s determination of the defen-
dant’s role in the offense is reviewed for clear error. United States v.
Sayles, 296 F.3d 219, 224 (4th Cir. 2002).
The presentence report recommended the two-level adjustment
based, in part, on Gallarza’s assistance in the transportation of the
drugs from New York to Virginia and his involvement in the pre-sale
processing of the cocaine. The district court concluded that the adjust-
ment was supported by the evidence that Gallarza "played an essential
role in transporting the cocaine from New York to Virginia, and that
at least as far as that activity was involved or concerned, he could
UNITED STATES v. GALLARZA 5
accurately be characterized as a manager of criminal activity."
Although Gallarza argues that there was no evidence that he super-
vised or managed any other participants in the conspiracy, Pedro
Guerrero testified that he met Gallarza in 1998 and that Gallarza "was
showing me the ropes and he was telling me that I could make money.
And he was the driver and he also knows English also, so they [used]
him . . . for English also." J.A.-1 at 82. We find, based on this evi-
dence, that the district court did not clearly err in enhancing Gal-
larza’s sentence for his role in the conspiracy.
Based on the foregoing, we affirm Gallarza’s conviction and sen-
tence. 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