By: Carson Smith

Defendant Contends Possession of a Firearm Conviction and Multiple Sentencing Enhancements.

In United States v. Pineda, the Fourth Circuit upheld the lower court’s conviction and sentencing of the defendant, Jesus Pineda. The Eastern District of North Carolina convicted the defendant on two counts of distribution of cocaine, possession of a firearm in furtherance of drug-trafficking, and possession of a sawed-off shotgun. The district court sentenced the defendant to 132 months in prison. On appeal, the defendant challenged the “possession of a firearm in furtherance of drug-trafficking” conviction as well as several sentencing enhancements which greatly increased the length of his imprisonment. The Court affirmed the possession conviction based on specific statements and actions, involving the handgun, made by the defendant during the cocaine transaction. Furthermore, the Court upheld the sentencing enhancements applied by the district court.

Defendant Convicted for Selling Cocaine and Firearms to Confidential Informant.

On November 30, 2011, a confidential informant (CI) purchased an ounce of cocaine and stolen assault rifle from Raul Sanchez. Sanchez acquired the items earlier in the day from Jesus Pineda and Pineda accompanied Sanchez to the transaction with the CI. Shortly thereafter, Pineda contacted the CI directly and proposed cutting Sanchez out of any future deals. On January 25, 2012, the CI purchased 54 grams of cocaine and a 12-gauge sawed-off shotgun from Pineda. The two had also discussed the purchase of a .380 caliber handgun; however, Pineda, at the meeting, refused to sell the gun. On February 8, 2012, the CI purchased 54 grams of cocaine and the .380 caliber handgun from Pineda. Subsequently, Pineda was arrested, charged, and convicted.

Court upholds “Possession of a Firearm in Furtherance of Drug-Trafficking” Conviction Because Defendant Exposed the Firearm During the Transaction and Emphasized the Firearm’s Necessity.

On appeal, Pineda contended that mere possession of a firearm during a drug transaction does not constitute “possession of a firearm in furtherance of drug-trafficking.” According to 18 U.S.C. § 924(c)(1)(A), the government must present evidence indicating that the possession of a firearm “furthered, advanced, or helped forward a drug trafficking crime.” At trial, it was established that during the January 25, 2012 meeting, Pineda took out the .380 caliber handgun and “placed it underneath his leg while conducting the drug transaction.” The CI asked to buy the gun, but Pineda refused, stating that it was “the only piece” he owned. The Court affirmed the conviction, stating that the evidence was sufficient enough for a reasonable juror to determine that the firearm was critical to Pineda’s drug trafficking activities.

Sentencing Enhancement Involving Hearsay Evidence Upheld Based on the Reliability of the Information.

Pineda also raised several issues challenging the sentencing enhancements applied by the district court. First, Pineda argued that the district court should not have factored the November 30, 2011 meeting into sentencing considerations because the only evidence tying Pineda to the Sanchez-CI purchase were hearsay statements by Sanchez. In sentencing, a district court is allowed to consider information that would otherwise be kept out of trial due to evidentiary rules as long as the information “has a sufficient indicia of reliability to support its probable accuracy.” In reviewing the reliability of information surrounding Pineda’s involvement in the November 30, 2011 transaction, the Court found persuasive the fact that Pineda was present at the transaction. Therefore, the Court determined that the information had a sufficient indicia of reliability.

Sentencing Enhancement Involving Three or More Illegal Transactions Upheld Based on the High Degree of Similarity Between the Transactions.

Second, Pineda argued that the November 30, 2011 transaction was not part of a common scheme or plan as the two subsequent deals because Pineda played a different role in the November 30 transaction and “there was no evidence showing that the three transactions were part of a larger pattern of illegal activity.” In order for the three transactions to be part of a common scheme or plan, it must be shown that they are “substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi.” Since Pineda was the seller of the cocaine and firearms in each of the three transactions, the Court held that the transactions had a “relatively high degree of similarity.” Therefore, the Court held that the district court did not err in grouping the three transactions for sentencing purposes.

Court Holds That Double Counting Involving the .380 Caliber Firearm Did Not Occur.

Finally, Pineda argued that the district court improperly double counted his possession of the .380 caliber handgun in applying the sentencing guidelines. Pineda’s sentencing was increased “for committing an offense that involved three or more firearms.” However, Pineda claimed that a statutory limitation prevented the trial court from counting the .380 caliber gun, for sentencing purposes, under both the “possession of a firearm in furtherance of drug-trafficking” conviction and the “three or more firearms” enhancement. “Double counting occurs when a provision of the Guidelines is applied to increase punishment on the basis of a consideration that has been accounted for by application by another Guideline . . . . Double counting is generally authorized unless the Guidelines expressly prohibit it.” The Court determined that the Guidelines did not expressly prohibit double counting and that double counting did not occur in this case. In particular, the Court held that the “in furtherance” conviction pertained to “particular unlawful uses of a firearm,” whereas the “three or more firearms” enhancement pertained to the number of firearms involved. Therefore, this was not an instance of double counting. The Court held that the sentencing enhancements applied by the trial court were proper.

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