US v. Pedro Oscar Dieguez
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cr-00020-FDW-DSC-1 Copies to all parties and the district court/agency. [999724203].. [15-4007]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4007
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PEDRO OSCAR DIEGUEZ, a/k/a The Cuban,
Defendant - Appellant.
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:
December 18, 2015
Decided:
December 23, 2015
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Peter C. Anderson, BEVERIDGE
Carolina, for Appellant. Jill
Attorney, Anthony J. Enright,
Charlotte, North Carolina, for
& DIAMOND, PC, Charlotte, North
Westmoreland Rose, United States
Assistant United States Attorney,
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Pedro Oscar Dieguez was convicted after a jury trial of
conspiracy
to
distribute
and
to
possess
with
intent
to
distribute at least five kilograms of cocaine and conspiracy to
launder funds.
He was sentenced to 400 months in prison.
He
appeals his convictions and sentence on numerous grounds.
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
a
Dieguez asserts
picture
regarding
the
scope of the conspiracy or the interplay of the coconspirators.
However, in evaluating the sufficiency of the evidence, we do
not review the credibility of the witnesses, and we assume that
the fact finder resolved all contradictions in the testimony in
favor of the Government.
313 (4th Cir. 2002).
United States v. Sun, 278 F.3d 302,
Moreover, it is not necessary to prove the
identifiable organizational structure of a conspiracy.
In fact,
contemporary drug conspiracies are often “only a loosely-knit
association of members linked only by their mutual interest in
sustaining the overall enterprise of catering to the ultimate
demands
of
a
particular
drug
consumption
2
market.”
United
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States v.
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Banks,
10
F.3d
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1044,
1054
(4th
Cir.
1993).
Accordingly, Dieguez’s claim is without merit.
II.
Dieguez
next
contends
that
the
district
court
erred
in
failing to sua sponte instruct the jury regarding single versus
multiple
conspiracies.
Dieguez
asserts
that
the
Government
built their proof of conspiracy upon a flawed assumption that
all
of
the
cocaine
that
was
ever
dealt
by
the
cooperating
witnesses was automatically part of one large single conspiracy.
“In a conspiracy prosecution, a defendant may establish the
existence of a material variance by showing that the indictment
alleged a single conspiracy but that the government’s proof at
trial
established
conspiracies.”
Cir.
1994).
the
existence
of
multiple,
separate
United States v. Kennedy, 32 F.3d 876, 883 (4th
Because
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
involved only in ‘separate conspiracies unrelated to the overall
3
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conspiracy charged in the indictment.’” Kennedy, 32 F.3d at 884
(quoting United States v. Castaneda-Cantu, 20 F.3d 1325, 1333
(5th Cir. 1994)).
A review of the evidence presented by the parties reveals
that
the
proof
conspiracies.
error,
in
which
trial
did
not
demonstrate
separate
Therefore, there was no variance, let alone plain
failing
conspiracies.
in
at
to
instruct
on
single
versus
multiple
The evidence presents a picture of one conspiracy
Maximiliano
Aguilar-Rodriguez
and
Juan
Diego
Aguilar-Preciado assisted Dieguez in obtaining large quantities
of cocaine from Mexico and distributing it to others for even
further
distribution
to
users.
Although
Dieguez
did
not
participate in all the transactions, there is no requirement
that every member must participate in every transaction to find
a single conspiracy. See United States v. Leavis, 853 F.2d 215,
218 (4th Cir. 1988).
The only testimony Dieguez refers to as
supporting his contention is Aguilar-Preciado’s testimony that
Dieguez wanted to work only with him and his uncle because other
drug dealers had not paid him.
However, the fact that Dieguez
wanted to work with limited people in his inner circle did not
negate
the
fact
that
his
suppliers
and
customers
all
worked
together over an extended period of time to sustain the needs of
the drug-buying public.
Therefore, the district court’s failure
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to
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give
a
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multiple
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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
However, both of these witnesses had pled guilty
to conspiracy, and the jury was instructed that the Government
still
had
to
conspiracy.
prove
There
that
was
Dieguez
no
abuse
was
of
involved
discretion
in
in
the
same
permitting
these witnesses to state the charge to which they pled guilty
and with whom they conspired.
IV.
Dieguez next contends that the district court erred in its
calculation
sentencing
of
the
drug
purposes.
quantity
We
review
attributable
the
district
to
him
court’s
for
drug
quantity finding underlying its calculation of the base offense
level for clear error.
147
(4th
Cir.
2009).
United States v. Kellam, 568 F.3d 125,
This
deferential
standard
of
review
requires reversal only if this court, upon review of the record
as a whole, “is left with the definite and firm conviction that
a mistake has been committed.”
Easley v. Cromartie, 532 U.S.
234, 242 (2001) (internal quotation marks omitted).
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Dieguez
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argues
first
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that
the
Government’s
witnesses
at
trial, whose testimony formed the basis for the attributable
drug amount, lacked the necessary reliability based upon their
biases,
the
inconsistencies
in
their
testimony,
their
vague
estimates, the alleged fact that some of the drug transactions
were not related to the conspiracy at issue, and the lack of
corroboration.
However,
the
district
court
was
entitled
to
credit the testimony of Dieguez’s coconspirators, even if the
testimony
was
inconsistent
or
otherwise
questionable.
See
United States v. Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997)
(explaining
that
the
uncorroborated
testimony
of
a
single
cooperating witness may be sufficient to uphold a conviction);
see also United States v. Sainz-Preciado, 566 F.3d 708, 713-14
(7th
Cir.
2009)
(holding
that
district
court
can
credit
testimony that is uncorroborated and comes from an admitted liar
or paid Government informant).
tied
to
well
over
150
Moreover, Dieguez was directly
kilograms
of
cocaine
by
specific
testimony, and Dieguez does not provide any specific evidence
that the witnesses’ estimates or recollections were incorrect
other than to contend that the witnesses were unreliable.
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.
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Lamarr, 75 F.3d 964, 972-73 (4th Cir. 1996) (concluding that
approximation
of
drug
quantity
for
sentencing
not
clearly
erroneous if supported by competent record evidence, which can
include the contradictory testimony of a coconspirator).
Dieguez further avers that the estimates in the presentence
report (“PSR”) do not “make sense” given that Dieguez apparently
owed money to his suppliers and did not live beyond his means.
Given that the amounts at issue, Dieguez asserts that he would
have
netted
Dieguez
“millions
contends
that
and
millions
the
allegations
inconsistent with the facts.
without merit.
of
dollars,”
of
drug
and
thus,
quantity
are
We find that Dieguez’s argument is
First, while Dieguez apparently dealt with large
amounts of drugs and money, only a portion of that money would
be profit, and a lesser portion would be profit to him.
the
Government
presented
evidence
of
nearly
Second,
$200,000
in
unexplained cash deposits into one of Dieguez’s accounts over a
four year period.
Dieguez
spent
a
Third, the Government presented evidence that
substantial
amount
of
construction projects on his property.
money
on
ongoing
Accordingly, there was
no error in calculating the drug quantity.
V.
Dieguez
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
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Guidelines, a defendant qualifies for a four-level enhancement
to his offense level if he “was an organizer or leader of a
criminal activity that involved five or more participants or was
otherwise extensive.”
USSG § 3B1.1(a).
The district court’s
determination that a defendant was an organizer or leader is a
factual
matter
reviewed
for
clear
error.
United
States
v.
Thorson, 633 F.3d 312, 317 (4th Cir. 2011).
Factors distinguishing a leadership or organizational role
from lesser roles include:
the exercise of decision making authority, the nature
of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense,
the nature and scope of the illegal activity, and the
degree of control and authority exercised over others.
USSG § 3B1.1, cmt. n.4.
The commentary to the Guideline also
states that there can “be more than one person who qualifies as
a leader or organizer of a criminal association or conspiracy.”
Id.
“Leadership over only one other participant is sufficient
as long as there is some control exercised.”
United States v.
Rashwan, 328 F.3d 160, 166 (4th Cir. 2003).
Dieguez
satisfied
commentary.
contends
any
of
the
that
there
factors
was
no
outlined
testimony
in
the
that
he
Guidelines
He also avers that the district court failed to
provide a sufficient analysis.
However, the trial testimony
showed that Dieguez had couriers, an accountant and an assistant
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working with him in his drug business.
In addition, Dieguez
arranged for the transportation and sale of large quantities of
cocaine.
Further, as the district court explicitly noted, many
meetings
and
transactions
took
place
at
Dieguez’s
home.
Finally, Dieguez’s counsel admitted at sentencing that the trial
testimony
alone
was
sufficient
to
support
a
three-level
enhancement under USSG § 3B1.1(b) and, aside from denying his
involvement
altogether,
provided
factual allegations in the PSR.
no
evidence
undermining
the
Accordingly, we conclude that
the district court did not clearly err.
See United States v.
Terry,
1990)
916
F.2d
157,
162
(4th
Cir.
(stating
that
“defendant has an affirmative duty to make a showing that the
information
reasons
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
a
(including
a
firearm) was possessed” in connection with the drug offense.
USSG § 2D1.1(b)(1).
weapons
enhancement
The commentary to § 2D1.1 explains that the
should
be
applied
“if
the
weapon
was
present, unless it is clearly improbable that the weapon was
connected with the offense.” USSG § 2D1.1, cmt. n.11(A).
The
district court’s decision to apply the enhancement is reviewed
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for clear error.
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United States v. Harris, 128 F.3d 850, 852
(4th Cir. 1997).
“[E]nhancement under Section 2D1.1(b)(1) does not require
proof of precisely concurrent acts, for example, gun in hand
while in the act of storing drugs, drugs in hand while in the
act
of
retrieving
a
gun.”
quotation marks omitted).
Id.
(alteration
and
internal
Instead, “possession of the weapon
during the commission of the offense is all that is needed to
invoke the enhancement.”
United States v. Apple, 962 F.2d 335,
338 (4th Cir. 1992); accord United States v. McAllister, 272
F.3d 228, 234 (4th Cir. 2001) (“In order to prove that a weapon
was present, the Government need show only that the weapon was
possessed
“[P]roof
during
of
sufficient,
the
relevant
constructive
and
the
illegal
possession
Government
is
drug
of
the
entitled
circumstantial evidence to carry its burden.”
activity.”).
[firearm]
is
to
on
rely
United States v.
Manigan, 592 F.3d 621, 629 (4th Cir. 2010).
Dieguez admitted to possession of a .22 pistol found in a
bedroom
in
Dieguez’s
house.
Further,
the
PSR
stated
that
Dieguez made several inquiries regarding purchasing firearms due
to his outstanding drug debt and that he told Aguilar-Rodriguez
that he had, in fact, obtained a firearm.
In addition, a .45
handgun was found in a table near the entryway of Dieguez’s
house.
Further, Dieguez was seen shooting a rifle and a handgun
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on his property.
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We find this evidence was sufficient to show
Dieguez’s possession of both firearms by a preponderance of the
evidence.
Cir.
See United States v. Lawing, 703 F.3d 229, 240 (4th
2012)
(explaining
that
constructive
possession
requires
showing of “ownership, dominion, or control over the contraband
itself
or
the
premises
.
.
.
in
which
the
contraband
is
concealed” (internal quotation marks omitted)).
Once the Government establishes a defendant’s possession of
a firearm, the weapons enhancement is proper unless a connection
between that possession and the narcotics offense is “clearly
improbable.”
The defendant bears the burden of showing such a
clear improbability.
Manigan, 592 F.3d at 630-32 & n.8.
Dieguez contends that the firearm found in the bedroom was
a collector’s item and that neither the gun found in the bedroom
nor the handgun found in a table by the entrance of the home was
loaded.
He also notes that no drugs were found in the home.
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.
The record is replete with evidence
regarding drug transactions in Dieguez’s home.
Moreover, the
presence of the firearms, whether or not they were loaded, could
act as a deterrent to potential drug thieves and serve as a
security
measure.
Id.
(noting
increase the risk of violence).
11
that
unloaded
weapons
still
Dieguez did not claim that he
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or anyone in his family used the guns for hunting or sport.
Because Dieguez had only a weak case to support his “clearly
improbable” theory and he possessed two firearms in his home
which was the site of numerous drug transactions, the district
court did not clearly err in applying the enhancement.
See
Manigan, 592 F.3d at 630 (noting that “a sentencing court might
reasonably infer, in the proper circumstances, that a handgun
seized from the residence of a drug trafficker was possessed in
connection with his drug activities”).
VII.
Dieguez next contends that his sentence was procedurally
unreasonable because the district court failed to consider the
sentencing disparities between his sentence and those of his
alleged coconspirators, who received sentences between 46 and
156 months.
disparities
However, although district courts are to consider
in
sentencing
when
imposing
a
sentence,
see
18
U.S.C. § 3553(a)(6) (2012), we have expressed doubt whether “a
defendant may . . . challenge a sentence on the ground that a
co-conspirator
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
defendant’s
sentence in comparison with that of co-defendants at sentencing,
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but need not do so; it is a matter of discretion.”), cert.
denied,
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
Accordingly, the district court did not err
in this regard.
VIII.
Finally,
substantively
Dieguez
asserts
unreasonable
that
given
his
that
400-month
he
was
a
sentence
is
non-violent,
first-time offender, with a strong work ethic and supportive
family background. We examine the substantive reasonableness of
the sentence under “the totality of the circumstances.”
United States, 552 U.S. 38, 51 (2007).
Gall v.
A sentence “within or
below a properly calculated Guidelines range is presumptively
reasonable [on appeal].”
United States v. Louthian, 756 F.3d
295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014).
The
defendant bears the burden to rebut this presumption “by showing
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the
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sentence
is
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unreasonable
. . . § 3553(a) factors.”
Id.
when
measured
against
the
In evaluating the sentence for
an abuse of discretion, this court “give[s] due deference to the
[d]istrict [c]ourt’s reasoned and reasonable decision that the
§ 3553(a) factors, on the whole, justified the sentence.”
552 U.S. at 59-60.
unreasonable,
even
We “can reverse a sentence only if it is
if
the
sentence
choice of the appellate court.”
722
F.3d
583,
590
Gall,
(4th
Cir.
would
not
have
been
the
United States v. Yooho Weon,
2013)
(internal
quotation
marks
omitted).
Here, the district court expressly acknowledged Dieguez’s
lack of a criminal record and his work history.
And indeed, the
court did vary downward in Dieguez’s case from the Guidelines
range
of
life
requested.
leader
in
The
in
a
prison,
court
very
albeit
opined
not
that
large-scale
to
the
Dieguez
conspiracy
degree
was
a
that
he
high-level
involving
enormous
quantities of cocaine, not regularly seen by the district court.
The court noted the seriousness of the crime, and the necessity
to
deter
both
Dieguez’s
future
conduct
and
the
conduct
of
others.
The court balanced these considerations with those that
weighed
in
personal
favor
history
of
and
a
shorter
sentence,
such
characteristics—namely
his
as
Dieguez’s
clean
past
record, the fact that his obstruction enhancement might chill
the right to take the stand, and the need to encourage his good
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behavior in prison.
positive
factors
substantial
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The court ultimately found that, while the
justified
sentence
a
below-Guidelines
nevertheless
was
sentence,
warranted.
a
After
considering the totality of the circumstances, we conclude that
Dieguez
has
not
rebutted
the
presumption
of
substantive
reasonableness accorded to his below-Guidelines sentence.
Accordingly, we affirm the judgment of the district court.
We
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
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