Argued: September 16, 2014.
Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. (7:12-cr-00066-BO-1). Terrence W. Boyle, District Judge.
Terry F. Rose, Smithfield, North Carolina, for Appellant.
Phillip Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Before NIEMEYER, WYNN, and FLOYD, Circuit Judges. Judge Niemeyer wrote the opinion, in which Judge Wynn and Judge Floyd joined.
NIEMEYER, Circuit Judge:
Jesus Pineda was convicted on separate counts of distributing cocaine on January 25, 2012, in violation of 21 U.S.C. § 841(a)(1); distributing cocaine on February 8, 2012, again in violation of § 841(a)(1); possessing a firearm in furtherance of the January 25 drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); and possessing a sawed-off shotgun on January 25, in violation of 26 U.S.C. § § 5841, 5861(d), and 5871. The district court sentenced Pineda to 132 months' imprisonment, and Pineda filed this appeal.
On appeal, Pineda challenges the sufficiency of the evidence to convict him of possessing a firearm in furtherance of a drug-trafficking crime. He also challenges the district court's application of several sentencing enhancements including, mainly, enhancements based on its determination that an uncharged transaction that took place on November 30, 2011, constituted relevant conduct under U.S. Sentencing Guidelines Manual § 1B1.3(a). For the reasons that follow, we affirm.
Based on a drug and firearm transaction that took place on November 30, 2011, in Duplin County, North Carolina, ATF agents began an investigation of Pineda that ultimately led to his convictions in this case. During the November 30 transaction, a confidential informant (" CI" ) purchased from Raul Sanchez a stolen assault rifle and one ounce of cocaine, both of
which Sanchez had obtained earlier that day from Pineda. Pineda also accompanied Sanchez to the transaction with the CI. On a later date, Pineda approached the CI on his own to indicate that he wanted to cut Sanchez out and to sell drugs directly to the CI. The CI reported the conversation to the ATF case agent who was supervising him, and the agent directed the CI to accept the proposal and to engage in further transactions directly with Pineda.
On January 25, 2012, the CI, while under police surveillance, bought 54.31 grams of cocaine and a 12-gauge sawed-off shotgun from Pineda for $2,550. The two men had previously agreed that Pineda would also sell the CI a .380 caliber handgun. Pineda brought the handgun to the transaction and had it on his person, but when the CI asked Pineda about it, Pineda refused to sell it, indicating that it was " the only piece I've got." He nonetheless promised to sell the handgun to the CI once he had obtained another gun.
Two weeks later, on February 8, 2012, the CI, while again under police surveillance, purchased 54.60 grams of cocaine from Pineda, as well as the .380 caliber handgun. The two men ended the transaction by agreeing that they would arrange another deal once Pineda received a new supply of cocaine. And, a few days later, Pineda texted the CI a picture of another handgun, and the two discussed the sale of that weapon as well.
Pineda was indicted and convicted by a jury on two counts charging him with the distribution of cocaine on January 25 and February 8, on one count charging him with possession of a firearm in furtherance of the January 25 drug transaction, and ...