United States v. Jose Luis Reyes

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4409
JOSE LUIS REYES,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CR-98-257)
Submitted: January 27, 2000
Decided: March 14, 2000
Before TRAXLER and KING, Circuit Judges,
and BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Charles H. Harp, II, HEDRICK, HARP & MICHAEL, Lexington,
North Carolina, for Appellant. Walter C. Holton, Jr., United States
Attorney, Steven H. Levin, Assistant United States Attorney, Greens-
boro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Following his guilty plea to one count of conspiracy to distribute
and possess with intent to distribute cocaine base, in violation of 21
U.S.C. § 846 (1994), the district court sentenced Jose Luis Reyes to
life in prison. Reyes appeals, challenging the district court's applica-
tion of the United States Sentencing Guidelines to increase his base
offense level by several levels. We find no merit to his claims; conse-
quently, we affirm.
First, Reyes contends that the district court erred by increasing his
offense level by two levels under United States Sentencing Guidelines
§ 2D1.1(b)(1) (1998) for possession of a firearm during the commis-
sion of his crime. Reyes brandished a firearm while robbing an indi-
vidual to collect a drug debt. Police found a gun at a home rented by
Reyes and used for drug activities. At the time of his arrest at a sepa-
rate residence, police found a firearm and drugs in a room where the
floor was covered with dog feces; Reyes had fresh dog feces on his
shoes. Reyes failed to show that the connection between his drug
offense and these firearms was clearly improbable. See United States
v. Harris, 128 F.3d 850, 852 (4th Cir. 1997). We find that the district
court's application of U.S.S.G. § 2D1.1(b)(1) to enhance Reyes' sen-
tence was not clearly erroneous.
Reyes also argues that the district court improperly enhanced his
offense level by two levels under U.S.S.G. § 3C1.1 for obstruction of
justice, based on Reyes' attack on Cedrick Stevenson, an individual
scheduled to testify against one of Reyes' co-defendants. Stevenson
testified that Reyes told him during the attack that"snitches get
stitches." We find that the district court did not err by applying the
obstruction of justice enhancement. See U.S.S.G. § 3C1.1 comment.
(n.1) (explaining that this enhancement is appropriate where obstruc-
tion of justice involved co-defendant's case).
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Next, Reyes argues that he should not have received an enhance-
ment for being an organizer or leader in the conspiracy under
U.S.S.G. § 3B1.1. The district court found that Reyes was an orga-
nizer or leader because, on at least one occasion, Reyes exercised
leadership authority when he took a co-defendant to Florida to pick
up drugs to bring back to North Carolina. The presentence report con-
tained other information amply supporting the adjustment. Reyes tes-
tified at sentencing that the conspiracy had no leaders, a claim the
district court did not accept. Thus, the district court's finding was not
clearly erroneous. See United States v. Kincaid , 964 F.2d 325, 329
(4th Cir. 1992).
Reyes claims that the district court should not have increased his
offense level by two levels under U.S.S.G. § 3B1.4 for using a person
under the age of eighteen to commit the offense. The evidence is
undisputed that Reyes provided drugs to Adrian Ladson to sell in
1993 when Ladson was under eighteen years old. Therefore, the dis-
trict court's finding that § 3B1.4 applied to Reyes was not clearly
erroneous.
Finally, Reyes contends that the district court committed clear error
by failing to grant him a downward adjustment for acceptance of
responsibility. The district court refused to grant this downward
adjustment because of Reyes' assault on Stevenson. We find that the
facts of this case do not warrant deviation from the general rule that,
if there is an upward adjustment for obstruction of justice, no down-
ward adjustment for acceptance of responsibility ordinarily is war-
ranted. See U.S.S.G. § 3E1.1, comment. (n.4).
For these reasons, we affirm Reyes' 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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