United States v. Mustapha Zico

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4408
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MUSTAPHA ISSAKA ZICO, a/k/a Mustafa Zico, a/k/a Alhaji,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:12-cr-00117-LO-1)
Submitted: December 20, 2013 Decided: January 29, 2014
Before NIEMEYER, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph R. Conte, Charles J. Soschin, LAW OFFICE OF J. R. CONTE,
P.L.L.C., Washington, D.C., for Appellant. Dana J. Boente,
Acting United States Attorney, Julia K. Martinez, James P.
Gillis, Assistant United States Attorneys, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mustapha Issaka Zico appeals the district court’s
judgment imposing a sentence of 216 months in prison after the
jury convicted him of conspiracy to import one kilogram or more
of heroin in violation of 21 U.S.C. §§ 960(b)(1)(A), 963 (2012),
and distribution for the purpose of unlawful importation of one
kilogram or more of heroin in violation of 18 U.S.C. § 2 (2012),
21 U.S.C. §§ 959(a), 960(b)(1)(A) (2012). On appeal, Zico
raises the issues of whether the evidence was sufficient to
convict him and whether his sentence was improper. We affirm.
A defendant challenging the sufficiency of the
evidence faces a heavy burden. United States v. Cone, 714 F.3d
197, 212 (4th Cir. 2013) (citation and quotations omitted). We
must uphold a jury verdict if there is substantial evidence,
viewed in the light most favorable to the Government, to support
it. United States v. Al Sabahi, 719 F.3d 305, 311 (4th Cir.
2013) (citation and quotations 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.” United States v. Burgos, 94
F.3d 849, 862 (4th Cir. 1996) (en banc).
Zico argues that the evidence was insufficient because
it “came solely from the testimony of unreliable drug dealers
and drug couriers,” and “a conviction based entirely on such
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biased testimony should not stand.” (Appellant’s br. at 13).
However, the jury has already assessed the credibility of the
witnesses, and we cannot do so on appeal. See United States v.
Cabrera-Beltran, 660 F.3d 742, 754 (4th Cir. 2011) (citation
omitted); see also Perry v. New Hampshire, 132 S. Ct. 716, 723
(2012) (“[J]uries are assigned the task of determining the
reliability of the evidence presented at trial.”). Moreover,
“[t]he settled law of this circuit recognizes that the testimony
of a defendant’s accomplices, standing alone and uncorroborated,
can provide an adequate basis for conviction.” United States v.
Burns, 990 F.2d 1426, 1439 (4th Cir. 1993) (citation omitted).
Deferring to the jury’s credibility determinations, we conclude
that substantial evidence supports the jury’s verdict.
We review a criminal sentence for reasonableness using
an abuse of discretion standard. United States v. McManus, 734
F.3d 315, 317 (4th Cir. 2013) (citing Gall v. United States, 552
U.S. 38, 51 (2007)). First, we consider whether the district
court committed a significant procedural error, such as
improperly calculating the Guidelines range or inadequately
explaining the sentence. United States v. Allmendinger, 706
F.3d 330, 340 (4th Cir.), cert. denied, 133 S. Ct. 2747 (2013).
If the sentence is procedurally reasonable, we then consider its
substantive reasonableness, taking into account the totality of
the circumstances. Gall, 552 U.S. at 51. We presume that a
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sentence within or below a properly calculated Guidelines range
is substantively reasonable. United States v. Susi, 674 F.3d
278, 289 (4th Cir. 2012).
In sentencing, the district court must first correctly
calculate the defendant’s sentencing range under the Sentencing
Guidelines. Allmendinger, 706 F.3d at 340. The district court
is next required to give the parties an opportunity to argue for
what they believe to be an appropriate sentence, and the court
must consider those arguments in light of the factors set forth
in 18 U.S.C. § 3553(a) (2012). Id.
When rendering a sentence, the district court must
make and place on the record an individualized assessment based
on the particular facts of the case. United States v. Carter,
564 F.3d 325, 330 (4th Cir. 2009). In explaining the sentence,
the “sentencing judge should set forth enough to satisfy the
appellate court that he has considered the parties’ arguments
and has a reasoned basis for exercising his own legal
decisionmaking authority.” Rita v. United States, 551 U.S. 338,
356 (2007). While a court must consider the statutory factors
and explain its sentence, it need not explicitly reference
§ 3553(a) or discuss every factor on the record. United States
v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006).
Zico first contends that the district court erred in
applying a three-level enhancement for his role as a manager or
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supervisor in the offense pursuant to U.S. Sentencing Guidelines
Manual § 3B1.1(b) (2012). We review this issue for clear error.
Cabrera-Beltran, 660 F.3d at 756. The adjustment applies “[i]f
the defendant was a manager or supervisor (but not an organizer
or leader) and the criminal activity involved five or more
participants or was otherwise extensive.” USSG § 3B1.1(b). The
Guidelines list seven factors to be considered in making the
determination. See USSG § 3B1.1 cmt. n.4; United States v.
Otuya, 720 F.3d 183, 192 (4th Cir. 2013) (applying some of these
factors in assessing propriety of three-level enhancement).
“[T]he aggravating role adjustment is appropriate
where the evidence demonstrates that the defendant controlled
the activities of other participants or exercised management
responsibility.” United States v. Llamas, 599 F.3d 381, 390
(4th Cir. 2010) (citation and internal quotations omitted); see
also United States v. Slade, 631 F.3d 185, 190 (4th Cir. 2011)
(noting this Court has affirmed application of an aggravating
role adjustment under USSG § 3B1.1(b) where there was “record
evidence that the defendant actively exercised some authority
over other participants in the operation or actively managed its
activities”). The defendant need only have exercised control
over one participant. See USSG § 3B1.1 cmt. n.2. Applying
these standards to the facts of this case, we conclude that the
district court did not clearly err in applying the enhancement.
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Finally, Zico contends that the district court failed
to consider pertinent sentencing factors when imposing his 216-
month sentence because the court failed to discuss certain
factors on the record and because his sentence was longer than
the sentences imposed on related defendants. We disagree.
The district court first properly calculated Zico’s
Guidelines range to be 262 to 327 months. The court noted that
it had considered the parties’ written positions on sentencing
and gave them an opportunity to argue for the sentence they
believed to be appropriate. Zico requested a sentence below his
Guidelines range based in part on the factors he raises on
appeal. He contended that the low end of his Guidelines range
was “100 months more than any other defendants in this case,”
and a sentence below the Guidelines range was appropriate based
on “the nature of the offense and the nature of Mr. Zico.”
The district court granted Zico’s request for a
variance and sentenced him substantially below his Guidelines
range. While the sentence was not as low as Zico wanted, the
court explained its sentence was appropriate because, unlike
other defendants, Zico had failed to accept responsibility and
had obstructed justice.
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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