                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4492



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


SELVIN AGUILAR DISCUA,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CR-04-290)


Submitted:   June 8, 2006                  Decided:    July 10, 2006


Before KING, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Walter H. Paramore, III, Jacksonville, North Carolina, for
Appellant.   Frank D. Whitney, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

        Selvin    Aguilar   Discua   appeals       from   his   convictions   and

sentence imposed for offenses arising from a multi-state conspiracy

to transport stolen baby formula.                  He contends (1) that the

evidence was insufficient to support his convictions, (2) that the

district court erred in calculating his Guidelines sentencing

range, and (3) that his sentence is unreasonable.                  As explained

below, we reject his contentions and affirm.



                                       I.

        Although we spend a good deal of time deciding conspiracy

cases, few involve as unique a subject matter as this one.*                   The

conspiracy to transport stolen baby formula underlying this appeal

originated in North Carolina sometime in 2000.                  Its ringleaders

were seven Hondurans, most of whom were related (the “family”).

Under       the   scheme,   the   family       employed   forty-five   to   fifty

individuals (called “clients”) who would steal baby formula from

any store where it was sold.           When a client had amassed enough

formula, he would transport it either to a storage unit rented by

the family or directly to a shipping terminal.                  The family would

then ship the formula by the truckload to buyers in Wisconsin,

Ohio, and Kentucky (the “buyers”).


        *
      Because Discua challenges the sufficiency of the evidence
supporting his convictions, we present the evidence in the light
most favorable to the prosecution.

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     The buyers generally paid the family in cash, shipped via UPS

or Federal Express, in amounts ranging from $ 40,000 to $90,000 per

delivery of formula.         The family would then pay its clients a

portion of the proceeds and retain the balance as profit.                  Using

bills of lading obtained from various shipping companies, the FBI

conservatively estimated that the value of the formula stolen in

the course of the conspiracy was $13 million.

     Among    the   family’s   clients      was   a   woman   known   in   this

proceeding only as Nancy.       She became a client in early 2003 and

continued in that capacity until the conspiracy unraveled in late

2004 due to the arrest of many of its participants.             According to

the trial testimony of many of the family’s members, during the

period of her participation, Nancy delivered between 400 and 600

bottles of formula to the family about three times a month.

Discua, her boyfriend, accompanied her on most of the deliveries,

driving the delivery vehicle and helping to unload the formula.

Although     the    family   usually       paid   Nancy   directly,    Discua

occasionally collected the payments owed. On one occasion in 2003,

Discua initiated an argument with a member of the family concerning

a payment he claimed was late.      He was told that the family had not

yet been paid by the buyers and that the family was unable to pay

its clients for the formula they provided until after the buyers

had paid for such formula.




                                       3
     In August 2004, the authorities closed in on the conspiracy

and arrested many of its participants, including Discua and several

members of the family.            On October 14, 2004, the grand jury in the

Eastern       District     of    North    Carolina    returned      a    multi-count

indictment against several of those arrested, including Discua. As

relevant here, the indictment charged Discua with conspiring to

transport stolen goods across state lines, in contravention of 18

U.S.C.    §    371,   and       with   aiding   and   abetting   the      interstate

transportation of stolen goods, in violation of 18 U.S.C. § 2314.

Although most of the charged conspirators pleaded guilty and agreed

to cooperate with the government, Discua exercised his right to a

jury trial.

     At his trial, conducted from February 8 to February 11, 2005,

several members of the family testified for the prosecution.                        In

addition to describing the facts related above, they recounted

that, prior to trial, Discua had implored them not to testify

against him.        Discua also advised them that his family knew where

their families lived, an assertion they interpreted as an implied

threat intended to dissuade them from testifying against him.

     At the end of the prosecution’s case-in-chief and after all

evidence      had   been    presented,      Discua    moved   for       judgments   of

acquittal. Both motions were denied, and on February 11, 2005, the

jury returned a verdict finding Discua guilty on both counts.                       His

presentence report (the “PSR”) recommended setting his base offense


                                           4
level at 6, and recommended four enhancements:               a twenty-level

enhancement for a loss of over $8 million, representing seventy-

five percent of the value of the formula shipped during Discua’s

participation in the conspiracy, see U.S.S.G. § 2B1.1(b)(1); a two-

level enhancement for a number of victims between ten and fifty,

see U.S.S.G. § 2B1.1(b)(2); a two-level enhancement for receiving

and selling stolen property, see U.S.S.G. § 2B1.1(b)(4); and a two-

level enhancement for obstruction of justice, see U.S.S.G. § 3C1.1.

Discua’s   total   recommended     offense   level    was   thus   32,    which

combined with criminal history category II, yielded a sentencing

range of 135 to 168 months imprisonment.              Discua filed written

objections to the proposed enhancements for the amount of loss, the

number of victims, and obstruction of justice.              He also asserted

that he was entitled to a downward adjustment, under § 3B1.2 of the

Guidelines, for playing a reduced role in the conspiracy.

     The district court conducted Discua’s sentencing hearing on

April   26,   2005.    At   that    hearing,    the    court    adopted    the

recommendations of the PSR and declined to grant Discua a downward

adjustment for playing a reduced role in the conspiracy. The court

ultimately sentenced Discua to a term of 151 months imprisonment.

Discua has timely noted his appeal, and we possess jurisdiction

pursuant to 28 U.S.C. § 1291.




                                     5
                                           II.

       In assessing a challenge to the sufficiency of the evidence

supporting     a   conviction,        we   are        obliged   to   affirm    unless    we

conclude that, viewing the evidence in the light most favorable to

the    prosecution,    no     reasonable          trier    of   fact   could    find    the

defendant guilty.        See United States v. Bursey, 416 F.3d 301, 306

(4th Cir. 2005).       We review each of the following for clear error:

(1) a sentencing court’s calculation of loss and number of victims

under § 1B1.1 of the Guidelines, see United States v. Pierce, 409

F.3d 228, 234 (4th Cir. 2005); (2) a court’s assessment under

§ 3B1.2(a) of a defendant’s role in an offense, see United States

v. Kiulin, 360 F.3d 456, 463 (4th Cir. 2004); and (3) a court’s

conclusion     under     §    3C1.1    that       a    defendant’s     statements      were

obstructive, see United States v. Hughes, 401 F.3d 540, 560 (4th

Cir. 2005).        Finally, we review for reasonableness a sentence

imposed under the advisory Sentencing Guidelines regime.                                See

United States v. Booker, 543 U.S. 220, 261 (2005).



                                           III.

       By this appeal, Discua makes three primary contentions:                          (1)

that the evidence is insufficient to support his convictions; (2)

that    the   district       court    erred       in    calculating    his     Guidelines

sentencing range, and (3) that his sentence is unreasonable.                             We

assess each contention in turn.


                                              6
                                       A.

      Discua first asserts that the prosecution’s evidence was

insufficient to support his convictions.                    With respect to both the

conspiracy offense and the substantive offense of transporting

stolen goods, Discua asserts that he only acted as a chauffeur for

Nancy and was unaware that the baby formula he helped to deliver

had been stolen.       These assertions are belied by the evidence.

First, Discua’s role was not limited to driving Nancy to deliver

the formula to the family.        He usually helped the family unload it

from his vehicle, occasionally accepted payment for the formula,

and   once   initiated    an   argument      with       a    member   of    the    family

concerning a payment he believed to be late.                       Second, there is

ample evidence demonstrating that Discua knew of the conspiracy’s

unlawful nature.       Even under Discua’s theory of the case, his

girlfriend Nancy stole the baby formula that he helped deliver to

the family.     A trier of fact could easily infer from the closeness

of the relationship between Discua and Nancy and his extensive

involvement in delivering the formula that he was aware that the

formula   was   stolen.        Moreover,     a    trier       of   fact    could   infer

consciousness     of   guilt    from   the       fact       that   Discua   asked    the

prosecution witnesses not to testify against him and threatened

harm to their families if they did so.              See United States v. Young,

248 F.3d 260, 272 (4th Cir. 2001) (observing that evidence of

witness intimidation is admissible to prove consciousness of guilt


                                       7
if related to charged offense).          The evidence was thus sufficient

to support both of Discua’s convictions.

                                     B.

     Discua     makes    three    contentions        regarding   the     court’s

computation of his Guidelines sentencing range: (1) that the court

clearly erred in calculating the amount of loss and the number of

victims attributable to him; (2) that the court clearly erred in

finding that his role in the conspiracy was neither minimal nor

minor; and (3) that the court clearly erred in finding that he

obstructed justice by threatening prosecution witnesses.

                                     1.

     With regard to the amount of loss and number of victims,

Discua   does   not     dispute   that       the   district   court    correctly

calculated the amount of loss and number of victims caused by the

conspiracy as a whole; rather, he only asserts that the amount of

the loss and number of victims is not attributable to him.                   In

applying § 1B1.1 of the Guidelines, a district court need only make

a “reasonable estimate” of the amount of loss and number of

victims.    United States v. Pierce, 409 F.3d 228, 234 (4th Cir.

2005).     As a general rule, any harm caused in furtherance of a

conspiracy during the period in which a defendant is a participant

in the conspiracy is attributable to the defendant under § 1B1.1 so

long as the harm is a reasonably foreseeable consequence of the

conspiracy.     See United States v. Newsome, 322 F.3d 328, 338 (4th


                                         8
Cir. 2003).         In this case, the district court did not err in

determining that Discua’s participation was such that he could

reasonably foresee the scope of the conspiracy.                     Discua made

numerous deliveries of formula to the family during the period of

his participation, many of them directly to shipping terminals.

Moreover, the evidence demonstrates that Discua was aware of the

overall structure of the scheme.            For example, during his argument

with a member of the family concerning the late payment, he was

told that payment was late because the family had not yet received

payment from the buyers.          Given that Discua, from his position

within    the   conspiracy,    could    have     surmised    the   scope   of    the

conspiracy, he could have reasonably foreseen both the amount of

loss caused by the conspiracy as well as the fact that there were

more than ten victims.

                                        2.

      Discua next asserts that the district court clearly erred in

finding that his role in the conspiracy was neither minimal nor

minor. A defendant is entitled to a four-level downward adjustment

if   he   was   a   “minimal   participant”       in   the   criminal   activity.

U.S.S.G.    §   3B1.2(a).      Even    if    a   defendant’s    role    cannot    be

characterized as “minimal,” he is entitled to a two-level reduction

if his participation was “minor.”                 § 3B1.2(b).      The critical

inquiry in determining whether a defendant is entitled to an

adjustment for his role in the offense is “not just whether the


                                        9
defendant has done fewer bad acts than his co-defendants, but

whether   the   defendant’s    conduct    is   material   or   essential    to

committing the offense.” United States v. Pratt, 239 F.3d 640, 646

(4th   Cir.   2001)    (internal   quotation   marks    omitted).    At    the

sentencing hearing, the court found that, based on the quantity of

formula that he delivered to the family, Discua was not merely a

client who stole the formula, but a mid-level participant who

received stolen formula from others and then delivered the formula

to the family.        This finding is not clearly erroneous and easily

justifies the court’s conclusion that Discua’s role was “material”

to the conspiracy.       Id.

                                     3.

       Discua also asserts that the court clearly erred in finding

that he obstructed justice by threatening members of the family who

intended to testify against him.          Discua does not dispute that

threatening a witness constitutes obstruction of justice.                  See

U.S.S.G. § 3C1.1, cmt. n.4(a) (observing that threatening or

intimidating witness constitutes obstruction of justice). Nor does

he dispute that he implored the witnesses not to testify against

him and advised them that his family knew where their families

lived.    Rather, Discua asserts that his statements could not have

been reasonably interpreted as a threat and that, in any event, the

witnesses did not actually feel threatened.            These assertions are

meritless.      First, the sentencing court did not clearly err in


                                     10
interpreting as a threat Discua’s statement that his family knew

where the witnesses’ families lived.              Although the threat was

implied rather than express, a less subtle implicit threat would be

difficult to imagine.         Second, because an attempted threat also

constitutes obstruction of justice, see id., it is irrelevant

whether the witnesses actually felt threatened.             The sentencing

court thus did not clearly err in finding that Discua obstructed

justice and enhancing his sentence accordingly.

                                      C.

        Finally, Discua contends that his sentence was unreasonable

under the standard set forth in United States v. Booker, 543 U.S.

220 (2005).      We disagree.      First, the sentencing court properly

followed the procedure we outlined in United States v. Hughes, 401

F.3d 540, 546 (4th Cir. 2005), calculating Discua’s sentencing

range    under   the   Guidelines   and    then   considering   the    factors

provided in 18 U.S.C. § 3553(a).           Second, Discua’s sentence fell

within the advisory Guidelines range and is thus “entitled to a

rebuttable    presumption     of   reasonableness.”      United    States    v.

Moreland, 437 F.3d 424, 433 (4th Cir. 2006).             In attempting to

rebut this presumption, Discua only asserts that his sentence is

unreasonable because he received a greater sentence than members of

the family who he considers more culpable than himself.               Although

the     disparity   between    Discua’s    Guidelines   sentence      and   the

sentences imposed on members of the family might have justified a


                                      11
variant sentence, see § 3553(a)(6) (providing that sentencing

courts must consider “the need to avoid unwarranted sentence

disparities among defendants with similar records who have been

found guilty of similar conduct”), the mere fact that he received

a sentence greater than those received by members of the family is

insufficient to rebut the presumption of reasonableness.



                                IV.

     Pursuant to the foregoing, the judgment of the district court

is affirmed.   We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

us and argument would not aid in the decisional process.

                                                           AFFIRMED




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