United States v. Abel Rangel

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5208
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ABEL CASTILLO RANGEL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:95-cr-00486-CMH-4)
Submitted: September 15, 2011 Decided: October 26, 2011
Before DUNCAN, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Edwin F. Brooks, EDWIN F. BROOKS, LLC, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Kara
Martin Traster, Special Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted Abel Castillo Rangel of
conspiracy to possess with intent to distribute and distribute
marijuana, in violation of 21 U.S.C. § 846 (2006); possession
with intent to distribute marijuana, in violation of 21 U.S.C.
§ 841(a) (2006); and distribution of marijuana, in violation of
21 U.S.C. § 841(a). The district court sentenced Rangel to 121
months of imprisonment and he now appeals. Finding no error, we
affirm.
Rangel first argues that there was insufficient
evidence to support the convictions. We review a district
court’s decision to deny a Rule 29 motion for a judgment of
acquittal de novo. United States v. Smith, 451 F.3d 209, 216
(4th Cir. 2006). A defendant challenging the sufficiency of the
evidence faces a heavy burden. United States v. Beidler, 110
F.3d 1064, 1067 (4th Cir. 1997). The verdict of a jury must be
sustained “if, viewing the evidence in the light most favorable
to the prosecution, the verdict is supported by ‘substantial
evidence.’” Smith, 451 F.3d at 216 (citations omitted).
Substantial evidence is “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.”
Id. (internal quotation marks and citation omitted).
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Moreover, “[t]he jury, not the reviewing court, weighs
the credibility of the evidence and resolves any conflicts in
the evidence presented.” Beidler, 110 F.3d at 1067 (internal
quotation marks and citation omitted). “Reversal for
insufficient evidence is reserved for the rare case where the
prosecution’s failure is clear.” Id. (internal quotation marks
and citation omitted).
In order to prove that Rangel conspired to possess
with intent to distribute and distribute marijuana, the
Government needed to show (1) an agreement between two or more
persons, (2) that Rangel knew of the agreement, and (3) that
Rangel knowingly and voluntarily joined the conspiracy. United
States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc)
(citations omitted). However, “a conspiracy may be proved
wholly by circumstantial evidence,” and therefore may be
inferred from the circumstances presented at trial. Id. at 858.
To establish possession with intent to distribute, the
Government had to prove that Rangel (1) knowingly, (2) possessed
the marijuana, (3) with the intent to distribute it. Id. at
873. Possession can be actual or constructive and, “[l]ike
conspiracy, [c]onstructive possession may be established by
either circumstantial or direct evidence.” Id. (internal
quotation marks omitted).
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Finally, to prove that a person distributed a
controlled substance, “the prosecution is obliged to prove that
(1) [the] defendant knowingly or intentionally distributed the
controlled substance alleged in the indictment, and (2) at the
time of such distribution the defendant knew that the substance
distributed was a controlled substance under the law.” United
States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005) (internal
quotation marks and citation omitted). We have thoroughly
reviewed the record and conclude that the Government presented
sufficient evidence of Rangel’s guilt of the offenses of
conviction.
Rangel next argues that the district court erred by
allowing a witness to testify to alleged hearsay statements of a
confidential informant, in violation of his right under the
Confrontation Clause of the Sixth Amendment. As Rangel failed
to object to this testimony at trial, this issue is reviewed for
plain error. See Fed. R. Crim. P. 52(b); United States v.
Olano, 507 U.S. 725, 731-32 (1993). To meet this standard,
Rangel must demonstrate that there was error, that was plain,
and that affected his substantial rights. Id. Moreover, even
if Rangel demonstrates plain error occurred, we will not
exercise discretion to correct the error “unless the error
seriously affect[s] the fairness, integrity or public reputation
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of judicial proceedings.” Id. (internal quotation marks and
citation omitted).
“The Sixth Amendment to the United States Constitution
. . . provides that [i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses
against him.” Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527,
2531 (2009) (internal quotation marks and citation omitted).
The Confrontation Clause “guarantees a defendant’s right to
confront those who bear testimony against him,” and, therefore,
a witness’ testimony is “inadmissible unless the witness appears
at trial or, if the witness is unavailable, the defendant had a
prior opportunity for cross-examination.” Id. (quoting Crawford
v. Washington, 541 U.S. 36, 51, 54 (2004)) (internal quotation
marks omitted). However, “the [Confrontation] Clause . . . does
not bar the use of testimonial statements for purposes other
than establishing the truth of the matter asserted.” Crawford,
541 U.S. at 59 n.9 (citing Tennessee v. Street, 471 U.S. 409,
414 (1985)). We conclude that the district court did not
plainly err in allowing the testimony regarding the confidential
informant’s statements because the statements were not offered
to prove the truth of the matters asserted.
Accordingly, we affirm the judgment of the district
court. We also deny Rangel’s motion to file a pro se
supplemental brief. We dispense with oral argument because the
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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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