United States v. Barragan ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4710
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JUAN CARLOS BARRAGAN, a/k/a Kora, a/k/a
Quarta,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:03-cr-00231-1)
Submitted: February 28, 2007 Decided: March 27, 2007
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN, P.C., Decatur,
Georgia, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Kevin Zolot, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juan Carlos Barragan appeals his convictions and sentence
for conspiracy to possess with intent to distribute over five
kilograms of cocaine and over one hundred kilograms of marijuana,
in violation of 21 U.S.C. §§ 841, 846 (2000) (Count 1), possession
with intent to distribute over fifty kilograms of marijuana, in
violation of 21 U.S.C. § 841 and 18 U.S.C. § 2 (2000) (Count 5),
and use and carrying of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C.A. § 924(c)(1) (West
Supp. 2006) (Count 6). Finding no error, we affirm.
Barragan’s first contention on appeal is that his
conviction on Count 6 should be reversed for insufficient evidence,
alleging that the Government failed to prove that the firearm found
on Barragan during his arrest was used in furtherance of a drug
trafficking crime. Barragan asserts that the Government did not
demonstrate a nexus between his possession of the firearm and the
drug trafficking activity, and that there was no evidence proving
that the firearm was used in furtherance of such activity.
This court reviews the denial of a motion for acquittal
de novo. United States v. Alerre, 430 F.3d 681, 693 (4th Cir.
2005), cert. denied, 126 S. Ct. 1925 (2006). Where, as here, the
motion is based on a claim of insufficient evidence, the verdict of
a jury must be sustained if there is substantial evidence, taking
the view most favorable to the Government, to support it. Id.; see
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Glasser v. United States, 315 U.S. 60, 80 (1942). This court has
defined substantial evidence as evidence that a reasonable finder
of fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.
Alerre, 430 F.3d at 693. This court must consider circumstantial
as well as direct evidence, and allow the Government 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). This court does not review credibility
determinations on appeal. See Glasser, 315 U.S. at 80.
Section 924(c) requires proof that a defendant used or
carried a firearm during and in relation to a drug trafficking
crime, or that the defendant, in furtherance of any such crime,
possessed a firearm. To sustain a conviction under § 924(c), the
Government must present evidence indicating that the possession of
the firearm “furthered, advanced, or helped forward a drug
trafficking crime.” United States v. Lomax, 293 F.3d 701, 705 (4th
Cir. 2002). To establish this relationship between the firearm and
the drug offense, the trier of fact may consider: “‘the type of
drug activity that is being conducted, accessibility of the
firearm, the type of weapon, whether the weapon is stolen, the
status of the possession (legitimate or illegal), whether the gun
is loaded, proximity to drugs or drug profits, and the time and
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circumstances under which the gun is found.’” Id. (quoting United
States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir. 2000)).
Despite Barragan’s assertion that the link between his
gun and the drugs was coincidental, we find that there was
substantial evidence linking Barragan’s firearm to the underlying
drug transaction. Before his arrest, officers found Barragan
standing five feet away from one hundred pounds of marijuana.
While securing Barragan, the arresting officer found a Beretta 9mm
handgun “tucked down in his waistband,” without a holster.
Additionally, witnesses testified that Barragan frequently carried
a 9mm handgun during drug transactions.1 While Barragan noted at
trial that he had a concealed handgun permit, that does not negate
the fact that Barragan was in possession of a firearm in close
proximity to a large amount of narcotics, the weapon was readily
accessible in the waistband of his pants, and testimony established
that Barragan almost always carried a 9mm handgun during drug
1
Barragan contends that testimony relating to his possession
of a firearm at any time other than the specific date identified in
the indictment cannot be used to support the conviction, citing
United States v. Randall, 171 F.3d 195, 209 (4th Cir. 1999)
(holding that if a specific predicate offense is identified in the
indictment, a conviction cannot stand on proof of an alternative
predicate offense). However, Barragan’s reliance on Randall is
misplaced, as the testimony did not relate to the predicate
offense, but rather was presented to establish that Barragan’s
firearm was regularly used in furtherance of his drug deals. See
United States v. Sullivan, 455 F.3d 248, 260 (4th Cir. 2006)
(finding that firearm was possessed in furtherance of drug crimes
based on testimony indicating that defendant frequently carried
handgun during drug transactions).
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transactions. Given Barragan’s frequent possession of a handgun
during drug transactions and the obvious dangers involved in
dealing with large amounts of narcotics, the evidence demonstrated
a clear connection between his firearm and his involvement in drug
activity. See Sullivan, 455 F.3d at 260 (jury was entitled to find
that handgun was used for personal protection based on dangerous
nature of drug dealing); Lomax, 293 F.3d at 706 (“Fact finders are
not required to blind themselves to the unfortunate reality that
drugs and guns all too often go hand in hand.”). Therefore, we
hold that there was sufficient evidence to support Barragan’s
conviction under § 924(c).
Barragan next asserts that the district court erred in
determining his base offense level, as he was held responsible for
62 kilograms of cocaine and 71 kilograms of marijuana, resulting in
a base offense level of 36.2 Barragan asserts that the jury’s
verdict supported a much lower offense level, involving five to
fifteen kilograms of cocaine, and that the significantly higher
2
Additionally, Barragan contends that the preponderance of
evidence standard should not have been applied in determining his
sentencing enhancements, as the facts relied on by the court were
not admitted by Barragan or found by a jury beyond a reasonable
doubt. However, this court has determined that sentencing
decisions made based on the preponderance of the evidence comport
with the requirements of the Sixth Amendment. See United States v.
Morris, 429 F.3d 65, 71 (4th Cir. 2005), cert. denied, 127 S. Ct.
121 (2006). Therefore, the district court applied the proper
evidentiary standard in determining Barragan’s sentence.
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amount reached by the district court was based on unreliable
testimony.
When reviewing the district court’s application of the
Sentencing Guidelines, this court reviews findings of fact for
clear error and questions of law de novo. United States v. Green,
436 F.3d 449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).
In this case, the jury found that the charged conspiracy involved
five kilograms or more of cocaine, and the PSR calculated that
Barragan was responsible for a total of 62 kilograms. Barragan
argued at sentencing, as he does on appeal, that this calculation
was supported solely by the unreliable testimony of co-
conspirators. The district court noted it would have been more
sympathetic to Barragan’s argument if the drug amounts were in fact
based only on the testimony of informants and co-conspirators, but
that “[t]his case is the result of [an] extensive, lengthy and very
professional operative investigation. And much of what the
corroborating witnesses say is, in fact, corroborated by the
evidence.”
The testimony presented at trial amply supported the
district court’s determination regarding the total amount of
cocaine used to calculate the base offense level. Jose Orosco, who
transported drugs for Barragan, testified at length regarding the
nearly 80 kilograms of cocaine that he observed Barragan either buy
or sell. David Martinez, who also worked for Barragan, testified
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that he had seen Barragan with over 100 kilograms of cocaine. The
testimony provided by these witnesses supported the information
provided to the probation officer by a confidential source of
information (“CSI”), who referred to three separate cocaine
transactions involving Barragan that totaled at least eighteen
kilograms. Based on the information provided to the probation
officer by the CSI, as well as the 44 kilograms of cocaine
discussed during a telephone conversation between Juan Barragan and
Enrique Barragan, the district court adopted the PSR’s calculation
that Barragan was responsible for at least 62 kilograms of cocaine.
As the district court noted, the Government not only
provided testimony from the co-conspirators regarding the drug
amounts, but the DEA was also able to gather additional evidence
through the use of recordings and wiretaps. While Barragan makes
conclusory allegations in an effort to undercut the testimony
provided by the co-conspirators, he presents nothing substantive
that would call into question the credibility determinations made
by the district court. See United States v. Jones, 356 F.3d 529,
537 (4th Cir. 2004) (quoting United States v. Moore, 242 F.3d 1080,
1081 (8th Cir. 2001)) (factual findings by trial court that are
based on credibility of witnesses are “virtually unreviewable” when
there are two permissible ways to view the evidence). In light of
the testimony and evidence provided at trial, we hold that the
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district court’s determination as to the total amount of cocaine
attributable to Barragan was not erroneous.
Barragan further contends that the district court erred
by increasing his offense level by four levels due to his role as
a “leader” in the conspiracy, pursuant to U.S. Sentencing
Guidelines Manual § 3B1.1(a). At trial, Martinez testified that
Barragan owned the garage where most of the drug transactions were
carried out, was responsible for bringing additional people into
his illegal operation, and that he was the “chief” and “head” of
the organization. Martinez also listed a number of individuals who
worked for Barragan, including Barragan’s brother and his nephew,
who were described as “second” and “third” within the organization.
Martinez further testified that when Barragan would leave for
Mexico, his brother and nephew were left in charge of the drug
operation. The testimony provided by Orosco and Martinez provided
the district court with adequate grounds to find that Barragan was
the leader of the organization, as Barragan directed the other
individuals and was identified as the head of operations. While
the district court did not specify whether the subject criminal
activity “involved five or more participants” or was “otherwise
extensive,” as is required under § 3B1.1, the evidence clearly
supported that Barragan’s organization involved more than five
participants. Therefore, we find that the district court did not
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err by increasing Barragan’s offense level by four levels due to
his organizational role within the conspiracy.
Finally, Barragan contends that the district court
erroneously concluded that it lacked the authority to grant a
variance from the Sentencing Guidelines range. In a post-Booker
sentencing, the court must calculate the advisory Guidelines range
and then consider whether that range serves the factors set forth
in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006). Green, 436 F.3d
at 456. In selecting a sentence that serves the § 3553(a) factors,
“the district court should first look to whether a departure is
appropriate based on the Guidelines Manual or relevant case law.”
United States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert.
denied, 126 S. Ct. 2054 (2006). If the resulting departure range
does not adequately address the court’s concerns, the district
court can impose a variance sentence. Id. If the district court
imposes a variance sentence, “[t]he district court must articulate
the reasons for the sentence imposed, particularly explaining any
departure or variance from the guideline range” in light of the
factors in § 3553(a). Id.; Green, 436 F.3d at 456.
While Barragan relies on selective remarks made by the
district court at sentencing, these statements do not sufficiently
support a claim that the district court believed that it lacked the
authority to grant a variance. The record, read in its entirety,
confirms that the district court understood its authority to impose
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a variance sentence, but declined to do so. The court heard from
both Barragan and the Government on this issue, noted the advisory
nature of the Sentencing Guidelines, and also recognized that the
Guidelines already consider the § 3553(a) factors. See United
States v. Johnson, 445 F.3d 339, 342-43 (4th Cir. 2006). The
district court concluded that the evidence presented by Barragan at
sentencing was not sufficient to diverge from the Guidelines range,
and that given the presumption of reasonableness given to the
Guidelines, the court was not “empowered” to grant a variance based
on the facts of the case. See United States v. Hampton, 441 F.3d
284, 287 (4th Cir. 2006) (variance must be supported by the facts
of the particular case); Moreland, 437 F.3d at 434 (divergence from
Guidelines range must be based on plausible reasons for doing so).
Therefore, we find that the district court was aware of its
authority to grant a variance sentence and committed no error in
declining to depart from the Sentencing Guidelines range.
Accordingly, we affirm Barragan’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
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