United States v. Jacobo-Mendoza , 150 F. App'x 200 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4789
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CESAR JACOBO-MENDOZA, a/k/a Cesar Jacobo,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-74)
Submitted: September 9, 2005 Decided: September 26, 2005
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, 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Unpublished opinions are not binding precedent in this circuit.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).
PER CURIAM:
Following a jury trial, Cesar Jacobo-Mendoza was
convicted of one count of conspiracy to possess with intent to
distribute in excess of five kilograms of a mixture and substance
containing a detectable amount of cocaine hydrochloride, in
violation of 21 U.S.C. §§ 841(b)(1)(A) and 846 (2000); and one
count of possession with intent to distribute approximately 10.683
kilograms of cocaine hydrochloride, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A) (2000). Jacobo-Mendoza appeals both his
conviction and his resulting 151-month sentence. We affirm.
Jacobo-Mendoza first challenges the sufficiency of the
evidence resulting in his conviction. A defendant challenging the
sufficiency of the evidence “bears a heavy burden.” United States
v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (citation omitted).
To determine if there was sufficient evidence to support a
conviction, this court considers whether, taking the evidence in
the light most favorable to the Government, substantial evidence
supports the jury’s verdict. Glasser v. United States, 315 U.S.
60, 80 (1942) (citation omitted); United States v. Wills, 346 F.3d
476, 495 (4th Cir. 2003) (citation omitted). The court reviews
both direct and circumstantial evidence and permits “the
[G]overnment the benefit of all reasonable inferences from the
facts proven to those sought to be established.” United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982) (citations omitted).
- 2 -
Witness credibility is within the sole province of the jury, and
the court will not reassess the credibility of testimony. United
States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989) (citations
omitted). Here, there was ample evidence on which to convict
Jacobo-Mendoza. Based on the physical evidence seized at the
scene, what the officers saw, and the facts in the case that were
not disputed, a reasonable jury could conclude that the evidence
was sufficient to support Jacobo-Mendoza’s conviction.
Jacobo-Mendoza next argues that the district court
violated his Sixth Amendment rights by enhancing his sentence for
“obstruction of justice” pursuant to the U.S. Sentencing Guidelines
Manual § 3C1.1 (2003), on facts not alleged in the indictment, not
admitted by Jacobo-Mendoza, and not found by a jury beyond a
reasonable doubt, in violation of United States v. Booker, 125 S.
Ct. 738 (2005). As Jacobo-Mendoza properly raised this issue in
the district court by objecting to his sentence factually and based
on Blakely v. Washington, 542 U.S. 296 (2004), we review de novo.
See United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003)
(“If a defendant has made a timely and sufficient Apprendi
sentencing objection in the trial court, and so preserved his
objection, we review de novo.”) (citation omitted). When a
defendant preserves a Sixth Amendment error, this court “must
reverse unless [it] find[s] this constitutional error harmless
beyond a reasonable doubt, with the Government bearing the burden
- 3 -
of proving harmlessness.” Id. (citations omitted); see United
States v. White, 405 F.3d 208, 223 (4th Cir. 2005) (discussing
difference in burden of proving that error affected substantial
rights under harmless error standard in Fed. R. App. P. 52(a) and
plain error standard in Fed. R. App. P. 52(b)).
The presentence report calculated Jacobo-Mendoza’s
guideline range to be 151 to 188 months in prison. This finding
was based on an offense level of thirty-two (based on a drug amount
of between five and fifteen kilograms of cocaine hydrochloride),
plus a two-level increase for obstruction of justice pursuant to
the U.S. Sentencing Guidelines Manual (“USSG”) § 3C1.1 (2003),
resulting in a total offense level of thirty-four, combined with a
criminal history category of I. The district court rejected
Jacobo-Mendoza’s objection to the obstruction of justice
enhancement, adopted the presentence report, and imposed two
concurrent sentences of 151 months’ imprisonment. Without
consideration of the challenged obstruction of justice enhancement,
Jacobo-Mendoza would have had an offense level of thirty-two.
Coupled with a criminal history level of I, this would have
resulted in a guideline range of 121 to 151 months. See USSG
Sentencing Table. Thus, even conceding that the obstruction of
justice enhancement was impermissible, no Sixth Amendment violation
occurred because the actual sentence imposed upon Jacobo-Mendoza,
151 months, does not exceed the maximum unenhanced guideline range.
- 4 -
See United States v. Evans, 416 F.3d 298, 300-01, (4th Cir. 2005)
(holding that if sentence does not exceed maximum authorized by
facts admitted by defendant or found by jury, there is no Sixth
Amendment violation).
Accordingly, we affirm Jacobo-Mendoza’s conviction and
sentence. 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
- 5 -