United States v. Gueta-Mendoza ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4931
FLORENTINO GUETA-MENDOZA,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-98-166)
Submitted: June 15, 1999
Decided: June 30, 1999
Before MURNAGHAN, NIEMEYER, and WILLIAMS,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Louis C. Allen, III, Federal Public Defender, Gregory Davis, Assis-
tant Federal Public Defender, Greensboro, North Carolina, for Appel-
lant. Walter C. Holton, Jr., United States Attorney, Clifton T. Barrett,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Following a jury trial, Florentino Gueta-Mendoza was convicted on
one count of conspiracy to distribute marijuana, in violation of 21
U.S.C. § 846 (1994), and one count of possession with intent to dis-
tribute marijuana, in violation of 21 U.S.C. § 841(a)(1) (1994). Men-
doza timely appealed and his attorney has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), addressing three
claims, but stating that in his opinion there are no meritorious issues
for appeal. We affirm.
Mendoza first argues that the district court erred by denying his
Fed. R. Crim. P. 29 motion for acquittal because the evidence was
insufficient to support his convictions. Mendoza was the passenger in
a Chevrolet Suburban that was stopped by police after it sped away
from a routine license checking station. Police later found 308 pounds
of marijuana in the vehicle. Mendoza was very nervous when
approached by police and he subsequently fled the scene. Hector
Simental, a co-conspirator who was driving the Suburban, testified
that Mendoza willfully participated in both the conspiracy and the
substantive offense. A grease stain on Mendoza's shirt was very simi-
lar to a greasy substance found on the packaging in which the mari-
juana was wrapped. We find that, viewed in the light most favorable
to the Government, the evidence is sufficient for a rational finder of
fact to have found the essential elements of both crimes of conviction
beyond a reasonable doubt. See United States v. Wilson, 135 F.3d
291, 306 (4th Cir.) (listing elements necessary to support a conviction
under 18 U.S.C. § 846), cert. denied, ___ U.S. ___, 66 U.S.L.W. 3758(U.S. May 26, 1998) (No. 97-8750); United States v. Nelson, 6 F.3d
1049, 1053 (4th Cir. 1993) (listing elements necessary to support a
conviction under 18 U.S.C. § 841).
Next, Mendoza argues that the district court erred by giving the
jury an instruction on the inferences it could draw from his flight on
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the night of his arrest. Because he did not object, this Court reviews
the flight instruction for plain error. See United States v. Olano, 507
U.S. 725, 731 (1993). A flight instruction is appropriate where "[t]he
chain of inferences leading from evidence of flight to consciousness
of guilt . . . [leads] to consciousness of guilt of the crime charged."
United States v. Porter, 821 F.2d 968, 976 (4th Cir. 1987). After
police stopped the Suburban, Mendoza appeared nervous and kept
opening and closing the car door, even after the officer told him to
stop. He spoke briefly in Spanish to Simental before fleeing.
Although Mendoza claimed Simental advised him at that time to flee
because he (Simental) was "already lost," Simental testified that Men-
doza told him he was going to run away. Under these circumstances,
we find no plain error in the district court's jury instruction, particu-
larly in light of the fact that the instruction clearly explained to the
jury that there could be valid reasons Mendoza was fleeing other than
guilt.
Finally, Mendoza argues that the district court erred by enhancing
his sentence two levels, pursuant to U.S. Sentencing Guidelines
Manual, § 3C1.1 (1998), for providing perjurious testimony during
his trial. A defendant's offense level will be increased by two levels
under this provision if, inter alia, he willfully obstructs justice during
his prosecution. Perjury may provide a basis for upward departure.
See U.S.S.G. § 3C1.1 comment (n.4(b)). In deciding whether to apply
the two-level adjustment in this case, the district court gave a detailed
rationale for the enhancement. The court found that Mendoza gave
false testimony concerning material facts and that he did so intention-
ally. We find that the court's findings encompass all of the necessary
factual predicates and therefore are sufficiently justified. See United
States v. Dunnigan, 507 U.S. 87, 94-95 (1993); United States v. Cook,
76 F.3d 596, 605 (4th Cir. 1996).
In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore deny counsel's
motion for leave to withdraw and affirm Mendoza's conviction and
sentence. This court requires that counsel inform his client in writing
of his right to petition the Supreme Court of the United States for fur-
ther review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
again move in this court for leave to withdraw from representation.
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See 4th Cir. Local Rule 46(d). Counsel's motion must state that a
copy thereof was served on the client. See id. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
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