                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-5011


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RICARDO SANCHEZ MENDOZA,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:09-cr-00091-D-1)


Submitted:   October 14, 2010             Decided:   November 10, 2010


Before DAVIS and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed and remanded by unpublished per curiam opinion.


John Keating Wiles, CHESHIRE, PARKER, SCHNEIDER, BRYAN & VITALE,
Raleigh, North Carolina, for Appellant. George E. B. Holding,
United States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Ricardo Sanchez Mendoza pled guilty to one count of

conspiracy      to    possess      with       intent      to     distribute         cocaine,   in

violation      of    21     U.S.C.      §    846       (2006),    and     three       counts   of

distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1)

(2006).      He      pled    not    guilty        to    possession        of    a    firearm   in

furtherance of a drug trafficking offense, in violation of 18

U.S.C. § 924(c)(1)(A) (2006), and was found guilty by a jury.

The district court sentenced Mendoza to 144 months in prison.

On   appeal,     Mendoza      alleges        that      the     district    court       erred   in

denying     his      motion        to       suppress      evidence        of        out-of-court

photographic identifications and that he should have received a

downward       adjustment          in       his       sentence      for        acceptance      of

responsibility.           For the following reasons, we affirm Mendoza’s

conviction and sentence.                We remand solely for the purpose of

correcting a clerical error in the judgment.                            See Fed. R. Crim.

P. 36.

            Mendoza first argues that the district court erred in

denying    his      motion    to     suppress          evidence    of     his       out-of-court

photographic identifications by Rasheed Hakeem White.                                 We review

de novo the district court’s legal conclusion as to whether the

identifications violated the Due Process Clause and its factual

findings for clear error.                   United States v. Saunders, 501 F.3d

384, 389 (4th Cir. 2007).

                                                  2
            The Due Process Clause protects against identification

procedures that are unnecessarily suggestive and conducive to

mistaken identifications.                    Neil v. Biggers, 409 U.S. 188, 198

(1972).         A     court         must    engage       in    a     two-step     inquiry        in

determining whether identification testimony is admissible.                                     See

United States v. Wilkerson, 84 F.3d 692, 695 (4th Cir. 1996).

First,    the       defendant        must     establish        that    the     identification

procedure       was        impermissibly          suggestive.              See        Manson     v.

Brathwaite, 432 U.S. 98, 108-10 (1977); Satcher v. Pruett, 126

F.3d 561, 566 (4th Cir. 1997).                         If he meets this burden, then

the     court       must       determine         whether       the    identification            was

nevertheless reliable under the totality of the circumstances.

Manson, 432 U.S. at 114.                   On appeal, this court is permitted to

assume    the       suggestiveness          of    an    identification         procedure        and

move    directly         to    the    second,      reliability         step.          Holdren    v.

Legursky, 16 F.3d 57, 61 (4th Cir. 1994).

            In       determining           reliability,       the     court    considers        the

following factors: (1) “the opportunity of the witness to view

the criminal at the time of the crime”; (2) “the witness’ degree

of     attention”;            (3)    “the     accuracy        of     the     witness’      prior

description         of     the      criminal”;         (4)    “the    level      of    certainty

demonstrated by the witness” at the identification; and (5) “the

length of time between the crime” and the identification.                                  Neil,

409 U.S. at 199-200; see Saunders, 501 F.3d at 391.

                                                  3
            Because we agree with the district court that White’s

identification of Mendoza was reliable under the Neil factors,

we do not address the question of the alleged suggestiveness of

the   photographic         identifications.                White    made     unequivocal,

positive identifications of Mendoza after meeting with Mendoza

twice during drug transactions where a maximum of four people

were present.         White’s description of Mendoza, made soon after

one of the transactions and prior to viewing the photograph, was

largely   accurate.          Under     these       circumstances,          we    hold   that

White’s identification was reliable, and that this reliability

outweighs       any        “corrupting            effect      of      the        suggestive

identification itself.” *            Manson, 432 U.S. at 114.                Accordingly,

we conclude that that the district court did not err in denying

Mendoza’s motion to suppress.

            Next, Mendoza asserts that he should have received a

downward adjustment for acceptance of responsibility.                             However,

a   defendant    generally      is    not     eligible       for    the    acceptance     of

responsibility        adjustment       under        U.S.     Sentencing          Guidelines

Manual    (“USSG”)     §    3E1.1     (2008)       when     he     receives      an   upward

adjustment      for   obstruction        of       justice     under       USSG   §    3C1.1.

      *
       Our confidence in the integrity of White’s identification
of Mendoza is bolstered by the fact that White was arrested near
Mendoza’s house and identified the location of the house, and
that cell phone records indicated contact between White and
Mendoza.



                                              4
United States v. Hudson, 272 F.3d 260, 263 (4th Cir. 2001).                          The

defendant has the burden of showing that his circumstances are

extraordinary.       Id.     Mendoza does not challenge the obstruction

of     justice    adjustment.           We       hold    that    Mendoza    failed    to

demonstrate      extraordinary       circumstances          warranting      application

of an acceptance of responsibility adjustment.

             Accordingly,       we      affirm          Mendoza’s    conviction      and

sentence.        We note, however, that the judgment entered by the

district court reflects that Mendoza was convicted by a jury on

all counts.       In fact, Mendoza pleaded guilty to Counts One, Two,

Four and Five, and was found guilty by a jury after pleading not

guilty to Count Three.            We remand for the purpose of correcting

this clerical error.         See Fed. R. Crim. P. 36.                We dispense with

oral    argument     because      the      facts    and     legal    contentions     are

adequately       presented   in      the     materials      before    the    court   and

argument would not aid the decisional process.



                                                                AFFIRMED AND REMANDED




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