                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4007


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

PEDRO OSCAR DIEGUEZ, a/k/a The Cuban,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Frank D. Whitney,
Chief District Judge. (3:13-cr-00020-FDW-DSC-1)


Submitted:   December 18, 2015            Decided:   December 23, 2015


Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Peter C. Anderson, BEVERIDGE     & DIAMOND, PC, Charlotte, North
Carolina, for Appellant. Jill     Westmoreland Rose, United States
Attorney, Anthony J. Enright,    Assistant United States Attorney,
Charlotte, North Carolina, for   Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Pedro Oscar Dieguez was convicted after a jury trial of

conspiracy        to   distribute    and        to     possess    with   intent   to

distribute at least five kilograms of cocaine and conspiracy to

launder funds.         He was sentenced to 400 months in prison.                   He

appeals his convictions and sentence on numerous grounds.                          We

affirm.

                                       I.

       Dieguez first contends that the jury was confused by the

unrelated and unreliable testimony regarding the various drug

transactions involved in his drug conspiracy.                      Dieguez asserts

that   the    Government    failed   to        paint    a   picture   regarding   the

scope of the conspiracy or the interplay of the coconspirators.

However, in evaluating the sufficiency of the evidence, we do

not review the credibility of the witnesses, and we assume that

the fact finder resolved all contradictions in the testimony in

favor of the Government.            United States v. Sun, 278 F.3d 302,

313 (4th Cir. 2002).         Moreover, it is not necessary to prove the

identifiable organizational structure of a conspiracy.                      In fact,

contemporary drug conspiracies are often “only a loosely-knit

association of members linked only by their mutual interest in

sustaining the overall enterprise of catering to the ultimate

demands      of   a    particular   drug       consumption       market.”     United



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States v.         Banks,    10    F.3d        1044,       1054     (4th        Cir.    1993).

Accordingly, Dieguez’s claim is without merit.

                                              II.

       Dieguez      next   contends      that       the    district       court      erred   in

failing to sua sponte instruct the jury regarding single versus

multiple      conspiracies.            Dieguez      asserts       that    the       Government

built their proof of conspiracy upon a flawed assumption that

all    of   the    cocaine      that    was    ever       dealt    by    the    cooperating

witnesses was automatically part of one large single conspiracy.

       “In a conspiracy prosecution, a defendant may establish the

existence of a material variance by showing that the indictment

alleged a single conspiracy but that the government’s proof at

trial       established         the     existence          of     multiple,           separate

conspiracies.”        United States v. Kennedy, 32 F.3d 876, 883 (4th

Cir.    1994).       Because      Dieguez      failed       to    raise       the    issue   of

variance before the trial court, however, and the jury was not

instructed that they could find separate conspiracies, review is

limited to determining whether the trial court committed plain

error in failing to sua sponte instruct the jury that they could

find multiple conspiracies rather than the single one charged in

the    indictment.     See      United    States      v.    Young,       470    U.S.    1,   15

(1985).       “A    multiple      conspiracy        instruction          is    not    required

unless      the   proof    at    trial    demonstrates           that    appellants       were

involved only in ‘separate conspiracies unrelated to the overall

                                               3
conspiracy charged in the indictment.’” Kennedy, 32 F.3d at 884

(quoting United States v. Castaneda-Cantu, 20 F.3d 1325, 1333

(5th Cir. 1994)).

       A review of the evidence presented by the parties reveals

that     the    proof     at    trial     did     not      demonstrate    separate

conspiracies.     Therefore, there was no variance, let alone plain

error,    in    failing    to       instruct    on    single    versus    multiple

conspiracies.     The evidence presents a picture of one conspiracy

in     which    Maximiliano          Aguilar-Rodriguez         and     Juan     Diego

Aguilar-Preciado assisted Dieguez in obtaining large quantities

of cocaine from Mexico and distributing it to others for even

further    distribution        to    users.       Although     Dieguez    did    not

participate in all the transactions, there is no requirement

that every member must participate in every transaction to find

a single conspiracy. See United States v. Leavis, 853 F.2d 215,

218 (4th Cir. 1988).            The only testimony Dieguez refers to as

supporting his contention is Aguilar-Preciado’s testimony that

Dieguez wanted to work only with him and his uncle because other

drug dealers had not paid him.                However, the fact that Dieguez

wanted to work with limited people in his inner circle did not

negate    the   fact    that   his    suppliers      and   customers    all   worked

together over an extended period of time to sustain the needs of

the drug-buying public.             Therefore, the district court’s failure



                                          4
to    give    a    multiple        conspiracy          instruction      was    not       plainly

erroneous.

                                                III.

      Dieguez next contends that the district court improperly

permitted         the     Government        to        question      Aguilar-Preciado        and

Aguilar-Rodriguez               regarding         who        was      involved       in      the

“conspiracy.”            However, both of these witnesses had pled guilty

to conspiracy, and the jury was instructed that the Government

still   had       to     prove    that      Dieguez       was      involved   in     the    same

conspiracy.             There    was   no   abuse       of    discretion      in    permitting

these witnesses to state the charge to which they pled guilty

and with whom they conspired.

                                                 IV.

      Dieguez next contends that the district court erred in its

calculation        of     the     drug      quantity         attributable      to    him    for

sentencing        purposes.            We   review       the     district     court’s      drug

quantity finding underlying its calculation of the base offense

level for clear error.                 United States v. Kellam, 568 F.3d 125,

147   (4th    Cir.        2009).         This     deferential        standard       of    review

requires reversal only if this court, upon review of the record

as a whole, “is left with the definite and firm conviction that

a mistake has been committed.”                         Easley v. Cromartie, 532 U.S.

234, 242 (2001) (internal quotation marks omitted).



                                                  5
       Dieguez      argues    first     that      the   Government’s       witnesses        at

trial, whose testimony formed the basis for the attributable

drug amount, lacked the necessary reliability based upon their

biases,      the    inconsistencies          in   their   testimony,        their       vague

estimates, the alleged fact that some of the drug transactions

were not related to the conspiracy at issue, and the lack of

corroboration.            However,     the    district       court   was    entitled       to

credit the testimony of Dieguez’s coconspirators, even if the

testimony      was    inconsistent       or       otherwise     questionable.             See

United States v. Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997)

(explaining        that    the    uncorroborated          testimony        of     a     single

cooperating witness may be sufficient to uphold a conviction);

see also United States v. Sainz-Preciado, 566 F.3d 708, 713-14

(7th    Cir.       2009)     (holding    that       district     court          can    credit

testimony that is uncorroborated and comes from an admitted liar

or paid Government informant).                    Moreover, Dieguez was directly

tied    to     well    over      150    kilograms       of    cocaine       by        specific

testimony, and Dieguez does not provide any specific evidence

that the witnesses’ estimates or recollections were incorrect

other than to contend that the witnesses were unreliable.                                 See

United States v. Randall, 171 F.3d 195, 210-11 (4th Cir. 1999)

(explaining that a defendant bears the burden of establishing

that information the district court relied on in calculating the

relevant drug quantity is incorrect); see also United States v.

                                              6
Lamarr, 75 F.3d 964, 972-73 (4th Cir. 1996) (concluding that

approximation         of     drug    quantity       for     sentencing         not      clearly

erroneous if supported by competent record evidence, which can

include the contradictory testimony of a coconspirator).

       Dieguez further avers that the estimates in the presentence

report (“PSR”) do not “make sense” given that Dieguez apparently

owed money to his suppliers and did not live beyond his means.

Given that the amounts at issue, Dieguez asserts that he would

have    netted       “millions      and     millions       of        dollars,”    and       thus,

Dieguez   contends          that    the     allegations         of     drug    quantity       are

inconsistent with the facts.                 We find that Dieguez’s argument is

without merit.         First, while Dieguez apparently dealt with large

amounts of drugs and money, only a portion of that money would

be profit, and a lesser portion would be profit to him.                                Second,

the    Government           presented       evidence       of        nearly    $200,000       in

unexplained cash deposits into one of Dieguez’s accounts over a

four year period.            Third, the Government presented evidence that

Dieguez       spent    a      substantial         amount        of     money     on    ongoing

construction projects on his property.                          Accordingly, there was

no error in calculating the drug quantity.

                                              V.

       Dieguez       next    asserts      that     the    district        court       erred   in

enhancing      his    offense       level    under       U.S.    Sentencing       Guidelines

Manual    §    3B1.1(a)        (2013).        Under       section        3B1.1(a)      of     the

                                              7
Guidelines, a defendant qualifies for a four-level enhancement

to his offense level if he “was an organizer or leader of a

criminal activity that involved five or more participants or was

otherwise extensive.”          USSG § 3B1.1(a).            The district court’s

determination that a defendant was an organizer or leader is a

factual   matter    reviewed     for    clear    error.       United    States   v.

Thorson, 633 F.3d 312, 317 (4th Cir. 2011).

      Factors distinguishing a leadership or organizational role

from lesser roles include:

      the exercise of decision making authority, the nature
      of participation in the commission of the offense, the
      recruitment of accomplices, the claimed right to a
      larger share of the fruits of the crime, the degree of
      participation in planning or organizing the offense,
      the nature and scope of the illegal activity, and the
      degree of control and authority exercised over others.

USSG § 3B1.1, cmt. n.4.           The commentary to the Guideline also

states that there can “be more than one person who qualifies as

a leader or organizer of a criminal association or conspiracy.”

Id.   “Leadership over only one other participant is sufficient

as long as there is some control exercised.”                     United States v.

Rashwan, 328 F.3d 160, 166 (4th Cir. 2003).

      Dieguez   contends       that    there    was   no    testimony    that    he

satisfied     any   of   the     factors       outlined     in    the   Guidelines

commentary.     He also avers that the district court failed to

provide a sufficient analysis.                 However, the trial testimony

showed that Dieguez had couriers, an accountant and an assistant

                                         8
working with him in his drug business.                               In addition, Dieguez

arranged for the transportation and sale of large quantities of

cocaine.     Further, as the district court explicitly noted, many

meetings     and       transactions          took           place    at      Dieguez’s       home.

Finally, Dieguez’s counsel admitted at sentencing that the trial

testimony        alone       was     sufficient             to    support     a     three-level

enhancement under USSG § 3B1.1(b) and, aside from denying his

involvement       altogether,          provided            no    evidence    undermining        the

factual allegations in the PSR.                           Accordingly, we conclude that

the district court did not clearly err.                              See United States v.

Terry,     916    F.2d       157,      162       (4th       Cir.     1990)     (stating       that

“defendant has an affirmative duty to make a showing that the

information       in     the    [PSR]       is       unreliable,      and     articulate        the

reasons     why        the     facts     contained               therein     are     untrue      or

inaccurate”).

                                                 VI.

     Section       2D1.1(b)(1)          of       the        Guidelines       provides     for     a

two-level    enhancement            “[i]f        a       dangerous   weapon        (including     a

firearm) was possessed” in connection with the drug offense.

USSG § 2D1.1(b)(1).            The commentary to § 2D1.1 explains that the

weapons     enhancement            should    be           applied    “if     the    weapon      was

present, unless it is clearly improbable that the weapon was

connected with the offense.” USSG § 2D1.1, cmt. n.11(A).                                        The

district court’s decision to apply the enhancement is reviewed

                                                     9
for clear error.         United States v. Harris, 128 F.3d 850, 852

(4th Cir. 1997).

      “[E]nhancement under Section 2D1.1(b)(1) does not require

proof of precisely concurrent acts, for example, gun in hand

while in the act of storing drugs, drugs in hand while in the

act   of    retrieving     a    gun.”         Id.    (alteration      and   internal

quotation marks omitted).            Instead, “possession of the weapon

during the commission of the offense is all that is needed to

invoke the enhancement.”           United States v. Apple, 962 F.2d 335,

338 (4th Cir. 1992); accord United States v. McAllister, 272

F.3d 228, 234 (4th Cir. 2001) (“In order to prove that a weapon

was present, the Government need show only that the weapon was

possessed       during    the     relevant      illegal       drug     activity.”).

“[P]roof     of     constructive     possession          of   the     [firearm]     is

sufficient,       and    the    Government          is   entitled     to    rely     on

circumstantial evidence to carry its burden.”                   United States v.

Manigan, 592 F.3d 621, 629 (4th Cir. 2010).

      Dieguez admitted to possession of a .22 pistol found in a

bedroom    in     Dieguez’s     house.    Further,        the   PSR    stated      that

Dieguez made several inquiries regarding purchasing firearms due

to his outstanding drug debt and that he told Aguilar-Rodriguez

that he had, in fact, obtained a firearm.                     In addition, a .45

handgun was found in a table near the entryway of Dieguez’s

house.     Further, Dieguez was seen shooting a rifle and a handgun

                                         10
on his property.       We find this evidence was sufficient to show

Dieguez’s possession of both firearms by a preponderance of the

evidence.      See United States v. Lawing, 703 F.3d 229, 240 (4th

Cir.   2012)    (explaining     that       constructive      possession   requires

showing of “ownership, dominion, or control over the contraband

itself    or   the   premises    .     .    .   in   which    the   contraband   is

concealed” (internal quotation marks omitted)).

       Once the Government establishes a defendant’s possession of

a firearm, the weapons enhancement is proper unless a connection

between that possession and the narcotics offense is “clearly

improbable.”     The defendant bears the burden of showing such a

clear improbability.      Manigan, 592 F.3d at 630-32 & n.8.

       Dieguez contends that the firearm found in the bedroom was

a collector’s item and that neither the gun found in the bedroom

nor the handgun found in a table by the entrance of the home was

loaded.     He also notes that no drugs were found in the home.

However, the test requires nothing more than that the guns be

located in the same place where drugs are stored or distributed.

Harris, 128 F.3d at 852-53.            The record is replete with evidence

regarding drug transactions in Dieguez’s home.                      Moreover, the

presence of the firearms, whether or not they were loaded, could

act as a deterrent to potential drug thieves and serve as a

security    measure.     Id.    (noting         that   unloaded     weapons   still

increase the risk of violence).                 Dieguez did not claim that he

                                           11
or anyone in his family used the guns for hunting or sport.

Because Dieguez had only a weak case to support his “clearly

improbable” theory and he possessed two firearms in his home

which was the site of numerous drug transactions, the district

court did not clearly err in applying the enhancement.                          See

Manigan, 592 F.3d at 630 (noting that “a sentencing court might

reasonably infer, in the proper circumstances, that a handgun

seized from the residence of a drug trafficker was possessed in

connection with his drug activities”).

                                     VII.

     Dieguez next contends that his sentence was procedurally

unreasonable because the district court failed to consider the

sentencing disparities between his sentence and those of his

alleged coconspirators, who received sentences between 46 and

156 months.      However, although district courts are to consider

disparities   in    sentencing   when       imposing   a     sentence,    see    18

U.S.C. § 3553(a)(6) (2012), we have expressed doubt whether “a

defendant may . . . challenge a sentence on the ground that a

co-conspirator     was   sentenced   differently.”           United    States    v.

Goff, 907 F.2d 1441, 1446-47 (4th Cir. 1990) (collecting cases),

superseded on other grounds by USSG app. C amend. 508; see also

United States v. Sierra-Villegas, 774 F.3d 1093, 1103 (6th Cir.

2014)   (“[T]he    district    court        may   consider    the     defendant’s

sentence in comparison with that of co-defendants at sentencing,

                                       12
but need not do so; it is a matter of discretion.”), cert.

denied,    136     S.    Ct.   34    (2015).        Section      3553(a)(6)     is   aimed

primarily     at    eliminating         national          sentencing     inequity,      not

differences      between       the   sentences       of    coconspirators.           United

States v. Withers, 100 F.3d 1142, 1149 (4th Cir. 1996); see also

United States v. Simmons, 501 F.3d 620, 623-24 (6th Cir. 2007)

(collecting cases).

      Moreover, Dieguez did not specifically raise the issue of

sentencing disparity below, although the district court stated,

in   any   event,       that   it    had    considered       all    of   the   sentencing

factors.         Further,      Dieguez      and     his    coconspirators       were    not

similarly situated.            Accordingly, the district court did not err

in this regard.

                                            VIII.

      Finally,      Dieguez      asserts      that    his    400-month       sentence    is

substantively       unreasonable           given    that    he     was   a   non-violent,

first-time offender, with a strong work ethic and supportive

family background. We examine the substantive reasonableness of

the sentence under “the totality of the circumstances.”                          Gall v.

United States, 552 U.S. 38, 51 (2007).                        A sentence “within or

below a properly calculated Guidelines range is presumptively

reasonable [on appeal].”               United States v. Louthian, 756 F.3d

295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014).                               The

defendant bears the burden to rebut this presumption “by showing

                                             13
that    the    sentence         is    unreasonable         when      measured         against    the

. . . § 3553(a) factors.”                    Id.        In evaluating the sentence for

an abuse of discretion, this court “give[s] due deference to the

[d]istrict [c]ourt’s reasoned and reasonable decision that the

§ 3553(a) factors, on the whole, justified the sentence.”                                     Gall,

552 U.S. at 59-60.                  We “can reverse a sentence only if it is

unreasonable,           even    if    the     sentence      would      not       have    been    the

choice of the appellate court.”                          United States v. Yooho Weon,

722    F.3d    583,      590    (4th       Cir.    2013)    (internal        quotation        marks

omitted).

       Here, the district court expressly acknowledged Dieguez’s

lack of a criminal record and his work history.                              And indeed, the

court did vary downward in Dieguez’s case from the Guidelines

range    of    life      in     prison,      albeit       not   to    the    degree       that    he

requested.             The    court       opined    that    Dieguez        was    a     high-level

leader    in       a    very     large-scale            conspiracy     involving          enormous

quantities of cocaine, not regularly seen by the district court.

The court noted the seriousness of the crime, and the necessity

to    deter    both          Dieguez’s      future       conduct     and     the       conduct   of

others.       The court balanced these considerations with those that

weighed       in   favor       of     a    shorter       sentence,     such       as     Dieguez’s

personal       history         and    characteristics—namely                his       clean     past

record, the fact that his obstruction enhancement might chill

the right to take the stand, and the need to encourage his good

                                                   14
behavior in prison.         The court ultimately found that, while the

positive   factors       justified    a     below-Guidelines       sentence,    a

substantial      sentence       nevertheless     was    warranted.          After

considering the totality of the circumstances, we conclude that

Dieguez    has     not   rebutted     the    presumption      of     substantive

reasonableness accorded to his below-Guidelines sentence.

      Accordingly, we affirm the judgment of the district court.

We   dispense    with    oral   argument    because    the   facts    and   legal

contentions      are   adequately    presented   in    the   materials      before

this court and argument would not aid the decisional process.



                                                                        AFFIRMED




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