US v. Carlos Ruiz
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number: 8:10-cr-00472-RWT-3. Copies to all parties and the district court/agency. [999275137].. [12-4962]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4962
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CARLOS JOSE TREJO
a/k/a Miqueloyo,
RUIZ,
a/k/a
Carlos
Trejo,
a/k/a
Nika,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:10cr-00472-RWT-3)
Argued:
December 12, 2013
Decided:
January 10, 2014
Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished opinion. Judge Shedd wrote the majority
opinion, in which Judge Duncan joined.
Judge Davis wrote a
dissenting opinion.
ARGUED:
Anthony
Douglas
Martin,
ANTHONY
D.
MARTIN,
PC,
Greenbelt, Maryland, for Appellant. Sujit Raman, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
ON
BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore,
Maryland, Christen A. Sproule, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit.
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SHEDD, Circuit Judge:
A federal jury convicted Carlos Jose Trejo Ruiz (“Trejo”)
on five criminal charges related to a drug conspiracy. In this
appeal,
he
sentence
challenges
on
Count
his
4,
conviction
which
and
charged
mandatory
him
with
30-year
possessing
a
machinegun during and in relation to a drug trafficking offense.
See 18 U.S.C. § 924(c)(1)(B)(ii). We affirm.
In
pertinent
part,
18
U.S.C.
§ 924(c)
prohibits
the
possession of a firearm in furtherance of a drug trafficking
crime.
If
requires
the
a
firearm
30-year
is
a
mandatory
machinegun,
sentence.
§ 924(c)(1)(B)(ii)
The
term
“machinegun”
means “any weapon which shoots, is designed to shoot, or can be
readily restored to shoot, automatically more than one shot,
without manual reloading, by a single function of the trigger.”
26 U.S.C. § 5845(b). In a prosecution under § 924(c)(1)(B)(ii),
the
government
must
prove
beyond
a
reasonable
doubt
as
an
element of the offense that the firearm is a machinegun. See
United States v. O’Brien, 560 U.S. 218 (2010).
Generally,
the
government
presented
evidence
at
trial
tending to establish that in 2009 and 2010, Trejo conspired with
others
cocaine
to
distribute
and
cocaine
and
base,
possess
and
with
that
in
intent
to
distribute
furtherance
of
this
conspiracy, he sold a firearm to a co-conspirator in exchange
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for $800-$1,000 worth of cocaine. 1 Additionally, the government
presented
the
testimony
of
an
ATF
agent
in
which
the
agent
opined, as an expert witness, that the firearm at issue “is a
machine gun as defined in the National Firearms Act because it’s
capable of firing more than one round of ammunition with the
single functioning trigger.” J.A. 114. The agent also testified
that the firearm had “Auto” inscribed on its side next to a
switch, which, when engaged, allowed the firearm to fire three
shots automatically per trigger pull.
The district court instructed the jury that in order to
convict Trejo on Count 4, it had to find beyond a reasonable
doubt (among other things) that the firearm was a machinegun.
The jury specifically made this finding. Viewing the evidence in
the light most favorable to the government, and in accord with
the
jury
instructions,
the
evidence
is
sufficient
for
a
reasonable jury to conclude that Trejo knowingly possessed the
machinegun in furtherance of the drug conspiracy.
Trejo argues, however, that his conviction on Count 4 must
be set aside because the jury was not required to find beyond a
reasonable doubt that he knew that the firearm was a machinegun.
Trejo did not object to the jury instructions, which omitted a
1
Trejo
firearm.
testified
at
trial,
4
denying
that
he
sold
the
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charge
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that
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the
government
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bore
the
burden
of
proving
such
knowledge. We therefore review this argument for plain error.
See Fed.R.Crim.P. 52(b); United States v. McLamb, 985 F.2d 1284,
1293 (4th Cir. 1993).
Under the plain-error standard of review, our “authority to
remedy [an] error . . . is strictly circumscribed.” Puckett v.
United States, 556 U.S. 129, 134 (2009). In our discretion, we
may
correct
an
error
not
raised
at
trial
only
where
the
appellant demonstrates: (1) there is in fact an error; (2) the
error is clear or obvious, rather than subject to reasonable
dispute;
(3)
the
error
affected
the
appellant’s
substantial
rights, which in the ordinary case means it affected the outcome
of the district court proceedings; and (4) the error seriously
affects the fairness, integrity or public reputation of judicial
proceedings. United States v. Marcus, 560 U.S. 258, 262 (2010).
The burden of establishing entitlement to relief for plain error
is on the appellant, United States v. Dominguez Benitez, 542
U.S. 74, 82 (2004), and “[m]eeting all four prongs is difficult,
as it should be,” Puckett, 556 U.S. at 135 (internal punctuation
and citation omitted).
For purposes of plain-error review, an error is “plain” if
it is “clear” or “obvious.” United States v. Olano, 507 U.S.
725, 734 (1993). Our cases thus hold that an error is plain if
(1) the explicit language of a statute or rule resolves the
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question, or (2) at the time of appellate consideration, the
settled law of the Supreme Court or this Court establishes that
an error has occurred. See United States v. Carthorne, 726 F.3d
503, 516 (4th Cir. 2013); United States v. Beasley, 495 F.3d
142, 149 (4th Cir. 2007). In the absence of a clear statutory or
rule directive, and where neither the Supreme Court nor this
Court have spoken directly on a legal issue, “the issue has not
been resolved plainly,” United States v. Wynn, 684 F.3d 473, 480
(4th Cir. 2012) (emphasis in original), and a district court
does
not
commit
plain
error
by
acting
in
accord
with
the
reasoning of another federal circuit court, see United States v.
Strieper, 666 F.3d 288, 295 (4th Cir. 2012).
Trejo
cites
no
government
must
prove
automatic
capabilities
§ 924(c)(1)(B)(ii).
statute
that
in
Instead,
a
or
rule
defendant
order
relying
to
mandating
knew
be
primarily
of
that
a
firearm’s
convicted
on
the
under
O’Brien
and
United States v. Staples, 511 U.S. 600 (1994), Trejo contends
that such a requirement is implicit. Even assuming that Trejo is
correct, 2 he has only established the first prong of plain-error
2
We need not decide whether error occurred in reviewing a
claim for plain error. See, e.g., United States v. Whitfield,
695 F.3d 288, 304 (4th Cir. 2012), cert. denied, 133 S.Ct. 1461
(2013) (“We need not reach or decide those points, however,
because even if the court abused its discretion by failing to
instruct on § 2113(d), and even if that assumed error was plain,
(Continued)
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review. Trejo’s claim fails, however, at the next prong because
he cannot establish that the purported error is “plain.”
Although the cases on which Trejo relies arguably support
his argument, the Supreme Court did not speak directly on the
question now before us, and we have not done so either. However,
two federal circuit courts of appeals have rejected the same
argument Trejo now makes. See United States v. Burwell, 690 F.3d
500 (D.C. Cir. 2012) (en banc), cert. denied, 133 S.Ct. 1459
(2013); United States v. Haile, 685 F.3d 1211 (11th Cir. 2012),
cert. denied, 133 S.Ct. 1723 (2013). 3 Under these circumstances,
Trejo
is
not
entitled
to
plain-error
relief
even
if,
as
he
contends, the district court erred. See Strieper, 666 F.3d at
295 (“Because the district court followed the reasoning of the
Eighth Circuit regarding an issue on which we have not ruled
directly,
it
did
not
commit
plain
error,
and
we
decline
to
reverse its application of the enhancement.”).
Trejo also challenges his mandatory 30-year sentence for
the § 924(c)(1)(B)(ii) conviction. We find no merit to Trejo’s
it neither contravened Whitfield’s substantial rights
warrants the exercise of our discretion to correct it.”).
3
nor
In denying Trejo’s post-trial motion for judgment of
acquittal, the district court expressly relied on the reasoning
of Burwell. See No. RWT:10-cr-00472-3, Order, at 4-5 (D. Md.
Oct. 1, 2012).
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argument
that
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this
sentence
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is
unconstitutional
or
otherwise
improper. See United States v. Khan, 461 F.3d 477, 495 (4th Cir.
2006)
(rejecting
Eighth
Amendment
challenge
to
mandatory
§
924(c) sentences); United States v. Robinson, 404 F.3d 850, 86162 (4th Cir. 2005) (explaining that each sentence for a § 924(c)
conviction must be imposed consecutively).
Based on the foregoing, we affirm Trejo’s conviction and
sentence.
AFFIRMED
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DAVIS, Circuit Judge, dissenting:
I respectfully dissent.
First,
substantially
for
the
reasons
set
forth
in
the
dissenting opinion of Judge Rogers in United States v. Burwell,
690
F.3d
500,
519-27
(D.C.
Cir.
2012)(en
banc)(Rogers,
J.,
dissenting), I would find that there is a mens rea component to
the
statutory
element
of
the
firearm’s
characteristic
as
a
machine gun. See also id. at 543-51 (Kavanaugh, J., dissenting).
Second, the majority addresses one prong of plain error
review: whether the error here was “clear” or “obvious.” Lest
there be any doubt, however, Supreme Court precedent plainly
informs us that “the omission of an element is an error.” Neder
v. United States, 527 U.S. 1, 15 (1999). Moreover, this case
involves an error affecting Trejo’s substantial rights and the
integrity of judicial proceedings. Accordingly, I would notice
the
error
and
conclude
that
the
government
failed
to
prove
beyond a reasonable doubt all of the elements of the indictment
count charging a violation of 18 U.S.C. § 924(c)(1)(B)(ii) and
would therefore reverse and remand for entry of a judgment of
acquittal on that count.
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