US v. Reymundo Rodriguez

Filing 920081209

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4018

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. REYMUNDO MONGE RODRIGUEZ, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:06-cr-00004-LHT-1)

Submitted:

November 19, 2008

Decided:

December 9, 2008

Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Sue Genrich Berry, BOWEN AND BERRY, PLLC, Wilmington, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Amy E. Ray, Mark A. Jones, Assistant United States Attorneys, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: On March 9, 2006, a jury convicted Reymundo Monge

Rodriguez of conspiracy to possess with intent to distribute methamphetamine, (2006) (Count in 1); violation of 21 with U.S.C. §§ 841(a)(1), to 846

possession

intent

distribute

methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (Count 2); possession of a firearm by an illegal alien, in violation of 18 U.S.C. § 922(g)(5) (2006) (Count 3); and possession of a

firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (2006) (Count 4). to 235 months' imprisonment on Counts Rodriguez was sentenced 1 and 2; 120 months'

imprisonment, to be served concurrently with the term imposed for Counts 1 and 2, on Count 3; and sixty months' imprisonment, to be served consecutively to the term imposed by Counts 1, 2, and 3, on Count 4; for a total of 295 months' imprisonment. Rodriguez first contends that the Government's

evidence at trial was insufficient to prove the existence of a conspiracy between Rodriguez and any other person to possess methamphetamine. A defendant challenging the sufficiency of the

evidence faces a heavy burden, United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997), and "a decision [to reverse for insufficient evidence] will be confined to cases where the

prosecution's failure is clear," Burks v. United States, 437 U.S. 1, 17 (1978) (footnote omitted). 2 A jury's verdict must be

upheld on appeal if there is substantial evidence in the record to support it. Glasser v. United States, 315 U.S. 60, 80

(1942).

In determining whether the evidence in the record is

substantial, we view the evidence in the light most favorable to the Government, and inquire whether there 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, 862In evaluating the sufficiency of

63 (4th Cir. 1996) (en banc).

the evidence, this court does not review "the credibility of the witnesses and assume[s] that the jury resolved all

contradictions in the testimony in favor of the government." United States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007), cert. denied, 128 S. Ct. 1690 (2008). At trial, found the Government presented evidence during of a

methamphetamine

among

Rodriguez's

belongings

search of his room, as well as other circumstantial evidence linking Rodriguez to the conspiracy. in the house where Rodriguez and A search of a laundry room others lived yielded more

methamphetamine and drug distribution paraphernalia. evidence linked Rodriguez to this methamphetamine

Probative and drug

distribution paraphernalia. testimony of an and

Finally, the Government offered the who had for both the purchased of

individual been

methamphetamine

present 3

purchase

methamphetamine from Rodriguez or his associates at this house several times a week during a seven month period. Though

Rodriguez testified that the drugs found were not his, and that he was not part of of the conspiracy, and assume we the do not review the all See was

credibility

witnesses

jury

resolved

contradictions in the testimony in favor of the Government. Foster, 507 F.3d at 245. We therefore conclude there

sufficient evidence to support the conspiracy conviction. Rodriguez next contends his trial counsel was

ineffective by failing to file motions to suppress the evidence seized from Rodriguez's bedroom and inculpatory statements made by Rodriguez after his arrest. Claims of ineffective assistance See

of counsel are generally not cognizable on direct appeal. United Rather, States to v. King, for 119 F.3d 290, 295 (4th of Cir.

1997). a

allow

adequate

development

the

record,

defendant must bring his claim in a 28 U.S.C.A. § 2255 (West Supp. 2008) motion. See id.; United States v. Hoyle, 33 F.3d An exception to this general rule conclusively establishes ineffective

415, 418 (4th Cir. 1994). exists when the record

assistance.

See United States v. Richardson, 195 F.3d 192, 198 We find that, because that Rodriguez's

(4th Cir. 1999); King, 119 F.3d at 295. the record does not conclusively

establish

Fourth Amendment claims were meritorious or that his counsel was

4

ineffective by failing to raise them, Rodriguez's ineffective assistance claims are not cognizable on direct appeal. Accordingly, sentence. legal before we affirm Rodriguez's convictions and

We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional

conclusions the court

would

process.

AFFIRMED

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