United States v. Jose Vanegas

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4455
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE DELORES VANEGAS, a/k/a Chivito,
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-00255-LO-6)
Submitted: February 27, 2014 Decided: March 10, 2014
Before DUNCAN, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lawrence H. Woodward, Jr., SHUTTLEWORTH, RULOFF, SWAIN, HADDAD &
MORECOCK, PC, Virginia Beach, Virginia, for Appellant. Dana J.
Boente, Acting United States Attorney, Richard D. Cooke,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Jose Delores Vanegas was
convicted of conspiracy to distribute cocaine, 21 U.S.C. § 846
(2012), and possession of a firearm in furtherance of a drug
trafficking offense, 18 U.S.C. § 924(c) (2012). The district
court sentenced him to a total of 120 months’ imprisonment.
Vanegas appeals, arguing that the evidence was insufficient to
support the jury’s verdict on the firearm charge and that the
district court erred in its instruction regarding the “in
furtherance” element of the firearm offense. * We affirm.
In reviewing the sufficiency of the evidence to
support a conviction, this court must determine whether, viewing
the evidence in the light most favorable to the government,
there is substantial evidence to support the conviction. United
States v. Stewart, 256 F.3d 231, 249 (4th Cir. 2001). To
sustain the § 924(c) conviction, the jury was required to
conclude that Vanegas possessed a firearm in furtherance of a
drug trafficking crime. This court has enumerated several
factors that a jury might consider to determine whether the
possession of the firearm “furthered, advanced, or helped
forward a drug trafficking crime.” United States v. Lomax, 293
*
Vanegas does not challenge his conspiracy conviction or
the sentence imposed.
2
F.3d 701, 704 (4th Cir. 2002). Those factors include “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 circumstances under which the gun is found.” Id. (internal
quotation marks omitted).
Considering these factors in conjunction with the
evidence produced at Vanegas’ trial, we conclude that the
evidence was sufficient to support his conviction. Notably,
the firearm possessed was a handgun, which is “uniquely suited
for drug transactions.” See United States v. Lipford, 203 F.3d
259, 267 n.7 (4th Cir. 2000). The serial number on the firearm
had been filed off, making possession of the weapon illegal, see
18 U.S.C. § 922(k) (2012); the firearm and two magazines, as
well as extra ammunition, cocaine, digital scales, and baggies
were discovered in a closet near the front door of Vanegas’
apartment.
Although there was no evidence presented that Vanegas
carried the firearm during drug transactions or that he
conducted any drug transactions in the apartment in which the
gun was found, Vanegas did offer to trade the firearm to his
supplier for drugs, an action that may satisfy the “in
furtherance of” requirement of § 924(c). See United States v.
3
Robinson, 627 F.3d 941, 955 (4th Cir. 2010). We conclude that
the evidence, as a whole, is sufficient for the jury to have
found that Vanegas’ possession of the firearm “furthered,
advanced, or helped forward” his drug trafficking offense. See
Lomax, 293 F.3d at 704.
Vanegas also argues that the district court erred in
instructing the jury on the “in furtherance of” element of
§ 924(c). This court reviews the content of the district
court’s specific jury instructions for an abuse of discretion,
United States v. Ellis, 121 F.3d 908, 923 (4th Cir. 1997); see
United States v. Whitfield, 695 F.3d 288, 305 (4th Cir. 2012)
(affording district court “considerable discretion in choosing
the specific wording of its instructions”), cert. denied, 133 S.
Ct. 1461 (2013), and will not reverse this decision if “the
instructions, taken as a whole, adequately state the controlling
law.” United States v. Ryan-Webster, 353 F.3d 353, 364 n.17
(4th Cir. 2003) (internal quotation marks omitted).
The district court’s instruction to the jury on the
“in furtherance of” requirement was as follows:
a firearm is possessed “in furtherance
of” a drug trafficking offense when the
firearm possession furthered, advanced, or
helped forward the drug trafficking offense.
Mere possession of a firearm is not
sufficient, but the government is not
required to prove that the firearm was
actively employed.
4
A jury may find that a firearm
furthered, advanced, or helped forward drug
trafficking in a number of ways, such as by
enabling a drug trafficker to collect during
a drug deal, by reducing the chance that the
drugs or drug profits would be stolen, by
preventing drug transactions from going
sour, or by defending the drug trafficker’s
turf.
In deciding whether a firearm furthered
drug trafficking, the jury may consider
factors such as the proximity of the firearm
to drugs or drug profits, the accessibility
of the firearm, whether the gun was loaded,
the type of firearm, the type of drug
activity being conducted, whether the weapon
was stolen, whether the possession of the
gun was legal, and the time and
circumstances under which the gun was found.
(JA at 187). Vanegas contends that the last paragraph of this
instruction is unnecessary and therefore erroneous. The factors
that the jury was instructed that they may consider were
enumerated in Lomax, 293 F.3d at 704-05 and applied in United
States v. King, 628 F.3d 693, 701 (4th Cir. 2011). The district
court’s instruction provided an accurate statement of the law
and provided the jury with guidance in applying the law. We
find no abuse of discretion by the district court in giving the
challenged instruction. See Whitfield, 695 F.3d at 305; Ryan-
Webster, 353 F.3d at 364 n.17. Accordingly, we affirm Vanegas’
conviction, and we affirm the district court’s judgment.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
5
before this court and argument would not aid the decisional
process.
AFFIRMED
6