Documentos de Académico
Documentos de Profesional
Documentos de Cultura
No. 15-4007
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
Chief District Judge. (3:13-cr-00020-FDW-DSC-1)
Submitted:
Decided:
PER CURIAM:
Pedro Oscar Dieguez was convicted after a jury trial of
conspiracy
to
distribute
and
to
possess
with
intent
to
He
We
affirm.
I.
Dieguez first contends that the jury was confused by the
unrelated and unreliable testimony regarding the various drug
transactions involved in his drug conspiracy.
that
the
Government
failed
to
paint
Dieguez asserts
picture
regarding
the
In fact,
of
particular
drug
consumption
market.
United
States v.
Banks,
10
F.3d
1044,
1054
(4th
Cir.
1993).
next
contends
that
the
district
court
erred
in
conspiracies.
Dieguez
asserts
that
the
Government
of
the
cocaine
that
was
ever
dealt
by
the
cooperating
established
conspiracies.
Cir.
1994).
the
existence
of
multiple,
separate
Dieguez
failed
to
raise
the
issue
of
variance before the trial court, however, and the jury was not
instructed that they could find separate conspiracies, review is
limited to determining whether the trial court committed plain
error in failing to sua sponte instruct the jury that they could
find multiple conspiracies rather than the single one charged in
the
indictment.
(1985).
unless
A
the
See
United
multiple
proof
at
States
conspiracy
trial
v.
Young,
instruction
demonstrates
that
470
is
U.S.
not
1,
15
required
appellants
were
the
proof
conspiracies.
error,
in
which
trial
did
not
demonstrate
separate
failing
conspiracies.
in
at
to
instruct
on
single
versus
multiple
Aguilar-Rodriguez
and
Juan
Diego
distribution
to
users.
Although
Dieguez
did
not
wanted to work with limited people in his inner circle did not
negate
the
fact
that
his
suppliers
and
customers
all
worked
to
give
multiple
conspiracy
instruction
was
not
plainly
erroneous.
III.
Dieguez next contends that the district court improperly
permitted
the
Government
Aguilar-Rodriguez
conspiracy.
to
question
regarding
who
Aguilar-Preciado
was
involved
in
and
the
had
to
conspiracy.
prove
There
that
was
Dieguez
no
abuse
was
of
involved
discretion
in
in
the
same
permitting
of
the
drug
purposes.
quantity
We
review
attributable
the
district
to
him
courts
for
drug
(4th
Cir.
2009).
deferential
standard
of
review
Dieguez
argues
first
that
the
Governments
witnesses
at
the
inconsistencies
in
their
testimony,
their
vague
However,
the
district
court
was
entitled
to
was
inconsistent
or
otherwise
questionable.
See
United States v. Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997)
(explaining
that
the
uncorroborated
testimony
of
single
Cir.
2009)
(holding
that
district
court
can
credit
to
well
over
150
kilograms
of
cocaine
by
specific
See
United States v. Randall, 171 F.3d 195, 210-11 (4th Cir. 1999)
(explaining that a defendant bears the burden of establishing
that information the district court relied on in calculating the
relevant drug quantity is incorrect); see also United States v.
6
of
drug
quantity
for
sentencing
not
clearly
netted
Dieguez
millions
contends
that
and
millions
the
allegations
of
dollars,
of
drug
and
thus,
quantity
are
Government
presented
evidence
of
nearly
Second,
$200,000
in
spent
amount
of
money
on
ongoing
next
enhancing
his
Manual
3B1.1(a)
asserts
offense
that
level
(2013).
the
under
Under
7
district
U.S.
court
Sentencing
section
erred
in
Guidelines
3B1.1(a)
of
the
USSG 3B1.1(a).
matter
reviewed
for
clear
error.
United
States
v.
states that there can be more than one person who qualifies as
a leader or organizer of a criminal association or conspiracy.
Id.
United States v.
contends
any
of
the
that
there
factors
was
no
outlined
testimony
in
the
that
he
Guidelines
In addition, Dieguez
meetings
and
transactions
took
place
at
Dieguezs
home.
alone
was
sufficient
to
support
three-level
altogether,
provided
no
evidence
undermining
the
Terry,
1990)
916
F.2d
157,
162
(4th
Cir.
(stating
that
in
why
the
the
[PSR]
facts
is
unreliable,
contained
and
therein
articulate
are
the
untrue
or
inaccurate).
VI.
Section
two-level
2D1.1(b)(1)
enhancement
of
[i]f
the
a
Guidelines
dangerous
provides
weapon
for
(including
enhancement
be
applied
if
the
weapon
was
The
of
retrieving
gun.
Id.
(alteration
and
internal
during
of
sufficient,
the
relevant
constructive
and
the
illegal
possession
Government
is
drug
of
the
entitled
activity.).
[firearm]
is
to
on
rely
United States v.
in
Dieguezs
house.
Further,
the
PSR
stated
that
In addition, a .45
on his property.
2012)
(explaining
that
constructive
possession
requires
or
the
premises
in
which
the
contraband
is
clear improbability.
However, the test requires nothing more than that the guns be
located in the same place where drugs are stored or distributed.
Harris, 128 F.3d at 852-53.
Moreover, the
measure.
Id.
(noting
that
unloaded
weapons
still
See
sentencing
when
imposing
sentence,
see
18
was
sentenced
differently.
United
States
v.
Goff, 907 F.2d 1441, 1446-47 (4th Cir. 1990) (collecting cases),
superseded on other grounds by USSG app. C amend. 508; see also
United States v. Sierra-Villegas, 774 F.3d 1093, 1103 (6th Cir.
2014)
([T]he
district
court
may
consider
the
defendants
136
primarily
differences
S.
at
Ct.
34
(2015).
eliminating
between
the
Section
national
sentences
3553(a)(6)
sentencing
of
is
aimed
inequity,
coconspirators.
not
United
States v. Withers, 100 F.3d 1142, 1149 (4th Cir. 1996); see also
United States v. Simmons, 501 F.3d 620, 623-24 (6th Cir. 2007)
(collecting cases).
Moreover, Dieguez did not specifically raise the issue of
sentencing disparity below, although the district court stated,
in
any
factors.
event,
that
Further,
similarly situated.
it
had
considered
Dieguez
and
his
all
of
the
sentencing
coconspirators
were
not
in this regard.
VIII.
Finally,
substantively
Dieguez
asserts
unreasonable
that
given
his
that
400-month
he
was
sentence
is
non-violent,
Gall v.
A sentence within or
295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014).
The
that
the
sentence
is
unreasonable
. . . 3553(a) factors.
Id.
when
measured
against
the
even
the
sentence
F.3d
583,
590
Gall,
(4th
Cir.
would
not
have
been
the
2013)
(internal
quotation
marks
omitted).
Here, the district court expressly acknowledged Dieguezs
lack of a criminal record and his work history.
of
life
requested.
leader
in
The
in
prison,
court
very
albeit
opined
not
that
large-scale
to
the
Dieguez
conspiracy
degree
was
that
he
high-level
involving
enormous
deter
both
Dieguezs
future
conduct
and
the
conduct
of
others.
weighed
in
personal
favor
history
of
and
shorter
sentence,
such
characteristicsnamely
his
as
Dieguezs
clean
past
behavior in prison.
positive
factors
substantial
sentence
below-Guidelines
nevertheless
was
sentence,
warranted.
After
has
not
rebutted
the
presumption
of
substantive
dispense
contentions
with
are
oral
argument
adequately
because
presented
in
the
facts
and
the
materials
legal
before
this court and argument would not aid the decisional process.
AFFIRMED
15