US v. Ricardo Mendoza


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:09-cr-00091-D-1 Copies to all parties and the district court/agency. [998463265] [09-5011]

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US v. Ricardo Mendoza Doc. 0 Case: 09-5011 Document: 33 Date Filed: 11/10/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5011 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICARDO SANCHEZ MENDOZA, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:09-cr-00091-D-1) Submitted: October 14, 2010 Decided: November 10, 2010 Before DAVIS and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed and remanded by unpublished per curiam opinion. John Keating Wiles, CHESHIRE, PARKER, SCHNEIDER, BRYAN & VITALE, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Case: 09-5011 Document: 33 Date Filed: 11/10/2010 Page: 2 PER CURIAM: Ricardo Sanchez Mendoza pled guilty to one count of conspiracy violation to of possess 21 with intent 846 to distribute and three cocaine, counts in of U.S.C. (2006), distribution of cocaine, in violation of 21 U.S.C. 841(a)(1) (2006). He pled not guilty to possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. 924(c)(1)(A) (2006), and was found guilty by a jury. The district court sentenced Mendoza to 144 months in prison. On appeal, Mendoza motion alleges to that the district court of erred in denying his suppress evidence out-of-court photographic identifications and that he should have received a downward adjustment in his sentence for acceptance of responsibility. For the following reasons, we affirm Mendoza's We remand solely for the purpose of See Fed. R. Crim. conviction and sentence. correcting a clerical error in the judgment. P. 36. Mendoza first argues that the district court erred in denying his motion to suppress evidence of his out-of-court We review photographic identifications by Rasheed Hakeem White. de novo the district court's legal conclusion as to whether the identifications violated the Due Process Clause and its factual findings for clear error. 384, 389 (4th Cir. 2007). 2 United States v. Saunders, 501 F.3d Case: 09-5011 Document: 33 Date Filed: 11/10/2010 Page: 3 The Due Process Clause protects against identification procedures that are unnecessarily suggestive and conducive to mistaken identifications. (1972). A court must Neil v. Biggers, 409 U.S. 188, 198 engage in a two-step inquiry in See determining whether identification testimony is admissible. United States v. Wilkerson, 84 F.3d 692, 695 (4th Cir. 1996). First, the defendant was must establish that the identification Manson v. procedure impermissibly suggestive. See Brathwaite, 432 U.S. 98, 108-10 (1977); Satcher v. Pruett, 126 F.3d 561, 566 (4th Cir. 1997). the court must determine If he meets this burden, then the identification was whether nevertheless reliable under the totality of the circumstances. Manson, 432 U.S. at 114. assume move the suggestiveness to the On appeal, this court is permitted to of an identification step. procedure Holdren and v. directly second, reliability Legursky, 16 F.3d 57, 61 (4th Cir. 1994). In determining reliability, the court considers the following factors: (1) "the opportunity of the witness to view the criminal at the time of the crime"; (2) "the witness' degree of attention"; of (3) the "the accuracy (4) of "the the witness' of prior description criminal"; level certainty demonstrated by the witness" at the identification; and (5) "the length of time between the crime" and the identification. 409 U.S. at 199-200; see Saunders, 501 F.3d at 391. 3 Neil, Case: 09-5011 Document: 33 Date Filed: 11/10/2010 Page: 4 Because we agree with the district court that White's identification of Mendoza was reliable under the Neil factors, we do not address the question of the alleged suggestiveness of the photographic identifications. White made unequivocal, positive identifications of Mendoza after meeting with Mendoza twice during drug transactions where a maximum of four people were present. White's description of Mendoza, made soon after one of the transactions and prior to viewing the photograph, was largely accurate. Under these circumstances, we hold that White's identification was reliable, and that this reliability outweighs any "corrupting effect of the suggestive Accordingly, identification itself." * Manson, 432 U.S. at 114. we conclude that that the district court did not err in denying Mendoza's motion to suppress. Next, Mendoza asserts that he should have received a downward adjustment for acceptance of responsibility. a defendant generally is not eligible U.S. when justice for the However, of acceptance responsibility Manual ("USSG") for adjustment 3E1.1 under (2008) of Sentencing he receives USSG Guidelines an upward 3C1.1. adjustment * obstruction under Our confidence in the integrity of White's identification of Mendoza is bolstered by the fact that White was arrested near Mendoza's house and identified the location of the house, and that cell phone records indicated contact between White and Mendoza. 4 Case: 09-5011 Document: 33 Date Filed: 11/10/2010 Page: 5 United States v. Hudson, 272 F.3d 260, 263 (4th Cir. 2001). The defendant has the burden of showing that his circumstances are extraordinary. of justice Id. Mendoza does not challenge the obstruction We hold that Mendoza failed to adjustment. extraordinary demonstrate circumstances warranting application of an acceptance of responsibility adjustment. Accordingly, sentence. we affirm Mendoza's conviction and We note, however, that the judgment entered by the district court reflects that Mendoza was convicted by a jury on all counts. In fact, Mendoza pleaded guilty to Counts One, Two, Four and Five, and was found guilty by a jury after pleading not guilty to Count Three. this clerical error. oral argument We remand for the purpose of correcting We dispense with contentions the court are and See Fed. R. Crim. P. 36. the the facts and legal before because in adequately presented materials argument would not aid the decisional process. AFFIRMED AND REMANDED 5

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