US v. Hilaria Rodriguez

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to withdraw as counsel [998842350-2]. Originating case number: 5:11-cr-00058-BR-1. Copies to all parties and the district court/agency. [998932975]. [11-5201]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-5201

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

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
W. Earl Britt, Senior
District Judge. (5:11-cr-00058-BR-1)

Submitted:

August 30, 2012

Decided:

September 7, 2012

Before GREGORY, SHEDD, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jenna T. Blue, BLUE STEPHENS & FELLERS LLP, Raleigh, North
Carolina, for Appellant.
Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Hilaria

Rodriguez

pled

guilty

to

conspiring

to

distribute and possess with intent to distribute at least 280
grams

of

cocaine

base

(“crack”),

at

least

five

kilograms

of

cocaine, and a quantity of marijuana, in violation of 21 U.S.C.
§ 846 (2006), and distributing at least 500 grams of cocaine, in
violation of 21 U.S.C. § 841(a)(1) (2006).

She was convicted

after a jury trial for possessing a firearm in furtherance of a
drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)
(2006).

The district court imposed a sentence of 151 months.

Rodriguez appeals her convictions and sentence.
Counsel for Rodriguez has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting that there
are no meritorious issues for appeal but questioning whether the
district

court

complied

with

Fed.

R.

Crim.

P.

11

when

it

accepted Rodriguez’s plea, whether the district court erred when
it denied the Fed. R. Crim. P. 29 motions, and whether the
district court erred when it imposed a two-level enhancement for
Rodriguez’s

role

in

the

offense.

Rodriguez

filed

a

pro

supplemental brief reasserting claims raised by counsel.
Government has elected not to file a brief.

se
The

We affirm.

Because Rodriguez did not move to withdraw her guilty
plea, the Rule 11 plea colloquy is reviewed for plain error.
United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002).
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After a thorough review of the record, we conclude that the
district court substantially complied with Rule 11, that any
omission did not affect Rodriguez’s substantial rights, and that
Rodriguez’s guilty plea was knowing and voluntary.
With

regard

to

her

conviction

for

possession

of

a

firearm in furtherance of a drug trafficking crime, Rodriguez
argues that the district court erred when it denied her Rule 29
motions for acquittal.
29 motion de novo.
(4th Cir. 2005).

This court reviews the denial of a Rule

United States v. Alerre, 430 F.3d 681, 693
When a Rule 29 motion is based on a claim of

insufficient evidence, the jury’s verdict must be sustained “if
there is substantial evidence, taking the view most favorable to
the Government, to support it.”
F.3d

210,

244

(4th

Cir.

United States v. Abu Ali, 528

2008)

(internal

brackets, and citations omitted).

quotation

marks,

This court “ha[s] defined

‘substantial evidence’ as 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.”
Alerre, 430 F.3d at 693 (internal quotation marks and citations
omitted).

In conducting our review, “we are not entitled to

assess witness credibility, and we assume that the jury resolved
any conflicting evidence in the prosecution’s favor.”

United

States v. Taylor, 659 F.3d 339, 343 (4th Cir. 2011) (internal

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quotation marks and citation omitted), cert. denied, 132 S. Ct.
1817 (2012).
Section
furtherance

924

of

a

§ 924(c)(1)(A).

prohibits
drug

We

sufficient

evidence

to

including

Rodriguez’s

possession

trafficking

conclude

that

support

each

participation

of

a

firearm

crime.

18

U.S.C.

Government

the

offered

element
in

in

a

of

the

drug

offense,

trafficking

offense and Rodriguez’s possession of the firearm in furtherance
of that offense.

See, e.g., United States v. Lomax, 293 F.3d

701, 705-06 (4th Cir. 2002) (analyzing sufficiency of evidence
of

possession

crime).

of

firearm

in

furtherance

of

drug

trafficking

We therefore conclude that the district court did not

err in denying the Rule 29 motions.
This

court

reasonableness,

reviews

applying

Rodriguez’s

the

sentence

abuse-of-discretion

Gall v. United States, 552 U.S. 38, 51 (2007).

for

standard.
This review

requires consideration of both the procedural and substantive
reasonableness of the sentence.

Id.; United States v. Lynn, 592

F.3d 572, 575 (4th Cir. 2010).
district

court

correctly

After determining whether the

calculated

the

advisory

Guidelines

range, we must determine whether the court considered the 18
U.S.C.

§ 3553(a)

presented

by

the

selected sentence.

(2006)
parties,

factors,
and

analyzed

sufficiently

the

arguments

explained

the

Lynn, 592 F.3d at 575-76; United States v.
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Carter, 564 F.3d 325, 330 (4th Cir. 2009).

If the sentence is

free of significant procedural error, this court will review the
substantive reasonableness of the sentence.

Lynn, 592 F.3d at

575; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
Rodriguez asserts that the enhancement for her role in
the

offense

was

improperly

applied.

This

court

reviews

application of sentencing enhancements for clear error.

the

United

States v. Cabrera-Beltran, 660 F.3d 742, 756 (4th Cir. 2011),
cert. denied, 132 S. Ct. 1935 (2012).

Rodriguez’s offense level

was increased by two levels based on her role as “an organizer,
leader,

manager,

or

supervisor.”

Manual § 3B1.1(c) (2011).

U.S.

Sentencing

Guidelines

The enhancement applies to leadership

of only one other person “as long as there is some control
exercised.”

United States v. Rashwan, 328 F.3d 160, 166 (4th

Cir. 2003).

After reviewing the record and the district court’s

factual

findings,

we

conclude

that

the

district

application of this enhancement was not clear error.
conclude,

after

a

thorough

Rodriguez’s

sentence

Rodriguez’s

within-Guidelines

coupled

with

the

is

examination

of

procedurally

mandatory

We also

record,

reasonable

sentence
minimum

the

on

the

sentence

court’s

and

that
that

drug

counts,

the

firearm

on

count, was substantively reasonable.

United States v. Farrior,

535

(“A

F.3d

[mandatory

210,

224

minimum]

(4th

Cir.

sentence

2008)
.
5

.

.

is

statutorily
per

se

required

reasonable

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. . . .”);

Abu

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Ali,

528

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F.3d

at

261

(“[A]

sentence

located

within a correctly calculated guidelines range is presumptively
reasonable.”).
In accordance with Anders, we have reviewed the record
and have found no meritorious issues for appeal.
affirm Rodriguez’s convictions and sentence.
motion to withdraw.
Rodriguez,

in

We therefore

We deny counsel’s

This court requires that counsel inform

writing,

of

the

right

to

petition

Court of the United States for further review.

the

Supreme

If Rodriguez

requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may renew her
motion in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
Rodriguez.
We dispense with oral argument because the facts and
legal
before

contentions
the

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

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