United States v. Laureano , 138 F. App'x 586 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4811
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NOE C. LAUREANO,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (CR-04-112)
Submitted: May 27, 2005 Decided: July 12, 2005
Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael MacKinnon, Greenville, South Carolina, for Appellant.
Regan Alexandra Pendleton, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Noe C. Laureano appeals from his conviction and seventy-
month sentence imposed following a jury trial on a charge of
conspiracy to possess with intent to distribute cocaine in
violation of 21 U.S.C.A. §§ 841, 846 (West 1999 & Supp. 2005).
Laureano’s counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), stating that there were no meritorious issues
for appeal, but challenging the sufficiency of the evidence to
support the jury’s verdict. Laureano has filed a pro se
supplemental brief, arguing the sufficiency of the evidence and
challenging his sentence. Because our review of the record
discloses no reversible error, we affirm Laureano’s conviction and
sentence.
This court reviews de novo the district court’s decision
to deny a motion for judgment of acquittal. United States v.
Wilson, 118 F.3d 228, 234 (4th Cir. 1997). Where, as here, the
motion was based on insufficient evidence, “[t]he verdict of a jury
must be sustained 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).
The evidence at trial showed that Jaime Sanchez Brito was
stopped for a moving violation en route to deliver a package of
cocaine to Francisco Castillo. He consented to a search of his
vehicle, and a package containing cocaine was discovered on the
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floorboard. He agreed to cooperate with the police officers and
conduct a controlled delivery of a substitute package. Brito
called Castillo and was told to come to Castillo’s house. Brito
initially agreed, but later called Castillo to report that he had
a flat tire. Castillo agreed to meet at Brito’s location. Instead
of Castillo, Laureano arrived at the location and parked next to
Brito’s vehicle. Laureano accepted the package which purportedly
contained cocaine and placed it in his vehicle. Once arrested, in
response to inquiries as to whether there were drugs in his
vehicle, Laureano responded, “you know what’s in the truck, you
know what a setup is.” (Tr. at 96). Viewed in the light most
favorable to the Government, we find that this evidence was
sufficient for the jury to find Laureano guilty beyond a reasonable
doubt of conspiracy to possess with intent to distribute cocaine.
See Glasser, 315 U.S. at 80; United States v. Burgos, 94 F.3d 849,
862-63 (4th Cir. 1996) (defining “substantial evidence”).
Although Laureano argued that he did not know what was in
the package and that he merely went to assist Brito with the flat
tire, the jury was free to reject this argument. See United
States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989) (holding that
credibility determinations are within the sole province of the
jury). Thus, we find that the district court properly denied
Laureano’s motion for judgment of acquittal and affirm Laureano’s
conviction.
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In a supplemental brief, Laureano challenges his sentence
under United States v. Booker, U.S. , 125 S. Ct. 738 (2005),
contending that the district court violated his Sixth Amendment
rights by treating the Sentencing Guidelines as a mandatory system
for purposes of determining his sentence. Our review of the record
convinces us that no Sixth Amendment violation occurred because
Laureano did not receive a sentence in excess of that authorized by
the jury’s verdict alone. With regard to the application of the
Sentencing Guidelines as mandatory, Laureano did not object in the
district court; thus, our review is for plain error. United
States v. White, 405 F.3d 208, 215 (4th Cir. 2005).
To demonstrate plain error, Laureano must establish that
error occurred, that it was plain, and that it affected his
substantial rights. Id. (citing United States v. Olano, 507 U.S.
725, 732 (1993)). Although “the imposition of a sentence under the
former mandatory guidelines regime rather than under the advisory
regime outlined in Booker is error,” White, 405 F.3d at 216-17, we
find that Laureano has failed to carry his burden of showing that
the error affected his substantial rights. See id. at 223; Olano,
507 U.S. at 734-35. Because our review of “the record as a whole
provides no nonspeculative basis for concluding that treatment of
the guidelines as mandatory” resulted in actual prejudice, this
error may not be corrected on appeal. Fed. R. Crim. P. 52(b);
White, 405 F.3d at 223-25.
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As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. We therefore
affirm Laureano’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 further review.
If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on the
client. 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
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