US v. Martin Saldana

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:12-cr-00049-RLV-DCK-1 Copies to all parties and the district court/agency. [999973136].. [15-4267]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4267

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARTIN MARTINEZ SALDANA,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Richard L.
Voorhees, District Judge. (5:12-cr-00049-RLV-DCK-1)

Argued:

September 22, 2016

Before FLOYD and
Circuit Judge.

HARRIS,

Decided:

Circuit

Judges,

November 22, 2016

and

DAVIS,

Senior

Affirmed by unpublished per curiam opinion.

ARGUED:
Robert
Lonnie
Cooper,
COOPER,
DAVIS
&
COOPER,
Fayetteville, North Carolina, for Appellant. Amy Elizabeth Ray,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.
ON BRIEF: Jill Westmoreland Rose, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
A jury convicted Martin Martinez Saldana of conspiracy to
distribute and to possess with intent to distribute 50 grams or
more of methamphetamine and 50 to 500 grams of a mixture and
substance containing a detectable amount of methamphetamine, in
violation of 21 U.S.C. § 846; and receiving or possessing a
short-barreled shotgun that was not registered to him in the
National Firearms Registration and Transfer Record, in violation
of 26 U.S.C. § 5861(c)-(d). The district court sentenced Saldana
to life imprisonment. On appeal, Saldana challenges both the
district court’s denial of his motion for judgment of acquittal
and his within-Guidelines life sentence. Finding no error, we
affirm.
I.
A.
In 2008, the Ashe County, North Carolina, Sherriff’s Office
received information from an anonymous source that Saldana was
involved

in

drug

trafficking.

Officers

began

surveilling

Saldana’s property in 2010, around the time they learned from a
Virginia-based
methamphetamine

investigative
had

crashed

team
his

that

a

person

motorcycle

near

trafficking
Saldana’s

residence. In early 2012, the same team reported that a Hispanic
man

named

Martin

who

worked

trafficking methamphetamine.
2

at

Adams

Construction

was

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During

2012,

trafficking
controlled

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the

investigation

activity
purchases

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into

intensified.
from

two

of

Saldana’s

Officers

Saldana’s

drug

orchestrated

customers,

Danny

Eller and Bobby Shore. After the officers conducted searches of
the

men’s

residences

methamphetamine,

that

firearms,

resulted

and

cash,

in

the

the
two

seizure

men

of

agreed

to

cooperate in the Saldana investigation.
In late October and early November 2012, Eller conducted
two controlled purchases of methamphetamine from Jose Pina, who
rented

a

trailer

on

Saldana’s

property

and

ran

Saldana’s

methamphetamine business when Saldana was in Mexico. The bag of
methamphetamine Eller purchased from Pina was wrapped in black
electrical

tape,

cellophane,

and

a

dryer

sheet,

which

is

a

common method of masking the odor of drugs. After the second
purchase,

Pina

Accordingly,
Eller

on

stopped
December

unannounced

to

returning
11,

2012,

Saldana’s

Eller’s
officers

property

to

phone
decided
talk

to

calls.
to

send

either

Saldana or Pina. Pina did not answer the door of his trailer,
but

Eller

recorded

a

conversation

with

Saldana.

During

this

conversation, Saldana told Eller that it was “too hot,” which
Eller testified meant that “the law [wa]s on [their] tails.”
J.A. 500. At another point in the conversation, Saldana said,
“I’m telling you so, I mean, things around here are pretty,
pretty quiet,” meaning that Saldana was not conducting any drug
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transactions at the time. J.A. 501-02. Saldana also told Eller
to “lay low,” or to “try to stay out of trouble.” J.A. 502.
The next day, officers sent Shore to Saldana’s property.
Shore recorded Saldana saying that he was going to leave for
Mexico the following night and asking Shore not to tell anyone
about his plan. According to Shore, a few days prior to this
meeting,

Saldana

had

asked

whether

Shore

knew

if

anyone

was

“getting in any trouble.” J.A. 548.
Knowing that they had to act quickly, officers immediately
executed a search warrant at Saldana’s home and the adjacent
property that Saldana owned. Officers discovered four unloaded
firearms,
ammunition;

including

an

electrical

unregistered,
tape;

short-barreled

cellophane;

dryer

shotgun;

sheets;

latex

gloves; one of Saldana’s identification cards; an overnight bag
containing men’s clothing, Saldana’s bank statements, and his
other personal items; and two cell phones that were found on
Saldana’s person.
In

February

2013,

Pina

disclosed

where

Saldana

stashed

methamphetamine and cash. Based on this information, officers
conducted

another

approximately
methamphetamine

search

$50,000
wrapped

of

Saldana’s

concealed
in

in

electrical

a

property

and

found

buried

PVC

pipe;

tape,

cellophane,

and

dryer sheets; empty buried PVC pipes; two magazines for a gun;
and ammunition.
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B.
A federal grand jury indicted Saldana and charged him with
conspiracy to distribute and possess with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 846; possession of
a

firearm

in

furtherance

of

a

drug-trafficking

offense,

in

violation of 18 U.S.C. § 924(c); possession of a firearm as a
convicted

felon,

in

violation

of

18

U.S.C.

§

922(g)(1);

possession of a firearm as a person convicted of a misdemeanor
crime

of

domestic

violence,

in

violation

of

18

U.S.C.

§

922(g)(9); and possession of a short-barreled shotgun that was
not registered to him, in violation of 26 U.S.C. § 5861(c)-(d).
The

government

later

dismissed

without

prejudice

the

charges

under 18 U.S.C. § 922(g).
Saldana pleaded not guilty and proceeded to a jury trial.
Eller

and

Shore

testified

about

their

history

of

buying

methamphetamine from Saldana, and Pina testified about selling
methamphetamine on Saldana’s behalf. Two of Saldana’s coworkers
also

testified

as

government

witnesses

about

Saldana’s

drug

trafficking activity. Clara Caudell testified that she worked
with

Saldana

at

Adams

Construction,

that

she

bought

methamphetamine from him fairly consistently for a period of
five years, and that she sold some of the methamphetamine to
support

her

drug

use.

James

Hawkins,

another

of

Saldana’s

coworkers at Adams Construction, testified that he sold “quite a
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bit” of methamphetamine for Saldana and that sometimes Saldana
would “front” the drugs and Hawkins would “pay him later.” J.A.
579-80.
The district court denied Saldana’s motion for a judgment
of acquittal. The jury found Saldana guilty of participating in
the drug trafficking conspiracy and possessing an unregistered,
short-barreled

shotgun,

but

it

found

him

not

guilty

of

possessing a firearm in furtherance of a drug trafficking crime.
In

Saldana’s

presentence

report,

the

probation

officer

grouped the offenses and calculated a base offense level of 38
using the 5.9 kilograms of actual methamphetamine attributable
to

Saldana.

The

probation

officer

recommended

a

2-level

enhancement because Saldana possessed a dangerous weapon, a 2level enhancement because the offense involved importation of
methamphetamine that Saldana knew was imported unlawfully, a 2level

enhancement

distributing

because

Saldana

methamphetamine,

a

maintained

4-level

premises

enhancement

for

because

Saldana was an organizer or leader of the conspiracy, and a 2level enhancement because Saldana “committed the offense as part
of a pattern of criminal conduct engaged in as a livelihood.”
These enhancements yielded an adjusted offense level of 50. The
probation officer recommended a total offense level of 43, the
highest possible offense level under the Sentencing Guidelines.

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a

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criminal

history

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category

of

I,

Saldana’s

advisory

Guidelines sentence was life imprisonment.
At sentencing, the Government advised the court that the
parties had agreed Saldana would withdraw his objections to the
presentence report and the Government would withdraw the twolevel enhancements for importing methamphetamine, maintaining a
premises for purpose of distributing a controlled substance, and
engaging in criminal conduct as a livelihood. Saldana’s adjusted
offense level without these enhancements was 44, but his total
offense level remained 43, and his Guidelines sentence was still
life imprisonment.
Saldana’s

counsel

moved

for

a

downward

departure

or

variance based on Saldana’s physical appearance. USSG § 5H1.4,
p.s. (providing that “[p]hysical condition or appearance . . .
may be relevant in determining whether a departure is warranted,
if the condition or appearance . . . is present to an unusual
degree and distinguishes the case from the typical cases covered
by the guidelines”). Counsel explained that Saldana had “scars
all over his body” from the gunshot and stab wounds he sustained
when he was robbed in Mexico. J.A. 755. Counsel argued that
Saldana’s
inmates

scars

to

and

perceive

soft-spoken
him

as

nature

vulnerable,

would
which

prompt
would

other

“subject

[him] to aggression” while incarcerated. J.A. 755-56. It is also
possible,

counsel

contended,

that
7

inmates

would

believe

that

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Saldana is an informant and “should be marked for death.” J.A.
756.

Counsel

averred

that,

because

Saldana

is

frail

and

not

capable of protecting himself, his only options in prison are to
join a gang or risk being marked as prey. Additionally, counsel
argued that because there was no evidence of violence in the
offense

conduct

and

the

jury

did

not

convict

Saldana

of

possessing the firearms in furtherance of the drug trafficking
conspiracy, Saldana was far less “sinister” or “violent” than
others

sentenced

emphasized

by

Saldana’s

the

court.

poor

J.A.

health,

758.

which

Finally,
reduced

counsel

his

life

expectancy, and his yearning to be with his family.
The court denied Saldana’s motion for a downward departure
because
were

Saldana’s

“not

physical

extraordinary

appearance
in

degree

and
and

medical
d[id]

conditions

not

make

a

compelling case for a particular vulnerability in the prison
environment.” J.A. 764. The court noted that many of Saldana’s
ailments “appear to be successfully addressed by medication” and
that Saldana’s “scars could be taken as a mark of toughness” as
easily

as

“a

mark

of

vulnerability.”

J.A.

764.

Moreover,

according to the district court, Saldana’s argument regarding
the pressure to join a gang could apply to every inmate and,
therefore, did not warrant a departure from the Guidelines.
The

court

emphasized

the

also

declined

“extremely

to

grant

serious”
8

a

variance.

nature

of

The

the

court

offense

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considering “the exceptional purity” of the methamphetamine and
the “exceptionally high amount” of methamphetamine being “moved
through numerous traffickers” under Saldana, who qualified as
the “kingpin” of the methamphetamine trafficking organization.
J.A.

765-66.

property

to

The

court

“hide

also

proceeds

observed
.

.

.

that
and

Saldana

used

facilitate

.

his
.

.

distribution” and used his “naturalized citizenship” to easily
move back and forth from Mexico. J.A. 765-66. The court stated
that any damage to Saldana’s family caused by his imprisonment
can only be attributed to his choice to participate in criminal
activity.

J.A.

765.

Finally,

the

court

found

that

Saldana’s

argument regarding his lowered life expectancy was “speculative”
and

that

Saldana’s

legitimate

employment,

which

“likely

provid[ed] a cover for his drug dealing,” also did not justify a
variance. J.A. 766.
The court sentenced Saldana to life imprisonment on the
drug conspiracy charge and a term of 120 months on the firearm
charge,

to

be

served

concurrently.

Saldana

filed

a

timely

appeal.
II.
Saldana first challenges the sufficiency of the evidence
supporting his drug conspiracy conviction. We review de novo the
district court’s denial of a motion for judgment of acquittal.
United States v. Engle, 676 F.3d 405, 419 (4th Cir. 2012). In
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assessing the sufficiency of the evidence, we determine whether
there is substantial evidence to support the conviction when
viewed

in

the

light

most

favorable

to

the

government.

Id.

“Substantial evidence is evidence that a reasonable finder of
fact

could

accept

as

adequate

and

sufficient

to

support

a

conclusion of guilt beyond a reasonable doubt.” Id. Thus, “[a]
defendant bringing a sufficiency challenge must overcome a heavy
burden, and reversal for insufficiency must be confined to cases
where the prosecution’s failure is clear.” Id. (citation and
internal quotation marks omitted).
To obtain a drug trafficking conspiracy conviction under 21
U.S.C. § 846, “the government must prove that (1) the defendant
entered into an agreement with one or more persons to engage in
conduct

that

violated

21

U.S.C.

§

841(a)(1);

(2)

that

the

defendant had knowledge of that conspiracy; and (3) that the
defendant

knowingly

and

voluntarily

participated

in

the

conspiracy.” United States v. Howard, 773 F.3d 519, 525 (4th
Cir. 2014) (alterations and internal quotation marks omitted).
“Given the clandestine and covert nature of conspiracies, the
government

can

circumstantial
omitted).

prove
evidence

“Evidence

transactions

can

of

the

existence

alone.”

Id.

continuing

support

the

of

a

(internal

conspiracy
quotation

relationships

finding

that

and
there

by

marks

repeated
was

a

conspiracy, especially when coupled with substantial quantities
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of drugs.” Id. at 526 (alterations and internal quotation marks
omitted).
Having

thoroughly

reviewed

the

record,

we

conclude

that

there was more than sufficient evidence to convict Saldana of
conspiring to distribute and possess with intent to distribute
methamphetamine.

The

Government

presented

ample

evidence

demonstrating that Saldana was the leader of a drug trafficking
operation

involving

a

large

quantity

of

methamphetamine.

The

evidence of Saldana’s guilt included the following: (1) Eller’s
and Shore’s recorded conversations with Saldana in which Saldana
expressed his concerns about law enforcement activity in the
area and said that he planned to flee to Mexico; (2) searches of
Saldana’s property that produced methamphetamine, drug packaging
materials, firearms, ammunition, and a large sum of money; (3)
testimony

from

Eller,

Shore,

and

Caudell

that

they

bought

methamphetamine, some of which was used for redistribution, from
Saldana, or from Pina in Saldana’s absence; and (4) Pina’s and
Hawkins’s testimony that they sold methamphetamine for Saldana.
Although Saldana argues that the coconspirators who testified at
his trial are untrustworthy, “[i]n evaluating the sufficiency of
the

evidence,

we

do

not

review

the

credibility

of

the

witnesses.” United States v. Foster, 507 F.3d 233, 245 (4th Cir.
2007).

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III.
Saldana also argues that his sentence is unreasonable. We
review a sentence for reasonableness under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007); United States v. Lymas, 781 F.3d 106, 111 (4th Cir.
2015). This review requires consideration of both the procedural
and substantive reasonableness of the sentence. Gall, 552 U.S.
at 51.
In

determining

reasonable,

we

whether

examine,

a

among

sentence
other

is

procedurally

factors,

whether

the

district court considered the 18 U.S.C. § 3553(a) factors and
sufficiently explained its chosen sentence. Id. at 51. Saldana
contends that the court did not adequately address the § 3553(a)
factors and that the court’s explanation for the sentence was
therefore

deficient.

meritless,

as

explanation

the

for

We

conclude

court

the

that

provided

sentence,

a

Saldana’s
lengthy

drawing

upon

argument
and

is

thorough

its

careful

consideration of the § 3553(a) factors, including the nature and
circumstances

of

characteristics,

the

the

need

offense,
to

Saldana’s

afford

adequate

history
deterrence

and
to

criminal conduct, and the need to protect the public.
Saldana also challenges the substantive reasonableness of
his

life

“within

.

sentence.
.

.

a

A

sentence,

properly

such

calculated
12

as

Saldana’s,

[Sentencing]

that

is

Guidelines

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is

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presumptively

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[substantively]

reasonable.

Such

a

presumption can only be rebutted by showing that the sentence is
unreasonable

when

measured

against

the

18

U.S.C.

§

3553(a)

factors.” United States v. Louthian, 756 F.3d 295, 306 (4th Cir.
2014)

(citation

presumption

by

omitted).
contending

Saldana
that

attempts

the

court

to

failed

rebut
to

the

accord

appropriate weight to the mitigating factors emphasized at the
sentencing

hearing,

including

the

“extraordinary

likelihood”

that he will be victimized while in prison, the possibility that
he will lose his strong familial relationships, his nonviolent
nature, and his deteriorating health. Appellant’s Br. at 26.
We conclude that Saldana has failed to make the requisite
showing. The district court considered the mitigating factors
and concluded that there was no reason to depart or vary from
the Guidelines. Saldana did not demonstrate to the satisfaction
of the district court that he was extraordinarily frail, and the
court found that many of his medical issues are successfully
addressed by medication. The court concluded that his physical
appearance does not make him particularly vulnerable in prison
because his scars could be taken as a mark of toughness. The
court

further

determined

that

any

potential

pressure

Saldana

would face to join a gang applied to all prisoners and therefore
did not justify a below-Guidelines sentence. There is no showing
here that these findings are clearly erroneous.
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The court did not ignore the likelihood that Saldana would
lose the support of his family while incarcerated; rather, it
concluded that losing familial connections is a consequence of
Saldana’s choice to participate in criminal activity. The court
permissibly

concluded

methamphetamine,

that

Saldana’s

trafficking

conspiracy,

conspiracy,

and

the

the

fact

the

massive

leadership
numerous

that

Saldana

amount

role

people
used

pure

the

in

of

drug

involved
his

in

the

property

and

citizenship to further the conspiracy outweighed the mitigating
factors

presented

by

Saldana

and

warranted

a

life

sentence.

Although these findings were certainly not compelled by this
record, they are not clearly erroneous, and thus do not render
the imposition of a life sentence an abuse of discretion.
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.

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