                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-4404


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RUBEN NOYOLA GARCIA,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:07-cr-00079-FDW-7)


Submitted:   January 29, 2010             Decided:   February 19, 2010


Before MICHAEL, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mauro Barreiro, LAW OFFICE OF MAURO BARREIRO, Edinburg, Texas,
for Appellant.   Edward R. Ryan, Acting United States Attorney,
Charlotte, North Carolina; Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Ruben       Noyola   Garcia        was    convicted       by   a   jury     of

conspiracy to possess with intent to distribute at least 100

kilograms of marijuana, 21 U.S.C.A. §§ 846, 841(b)(1)(B) (West

1999 & Supp. 2009) (Count One), and possession of at least 100

kilograms of marijuana with intent to distribute, 21 U.S.C.A.

§ 841(a), (b)(1)(B), 18 U.S.C. § 2 (2006).                       Garcia challenges

his conviction and sentence.           We affirm.

           The government’s evidence at trial established that in

January 2007 a tractor-trailer truck was stopped in Mississippi

because it lacked a visible Department of Transportation number.

Inspection revealed that it contained rotting fruit and $1.2

million   in    cash    in   several      suitcases.           The   driver,      Benito

Delagarza, cooperated and made two recorded telephone calls to

his boss, Ruben Barraza, who was listed on documents in the

truck’s   cab   as     the   owner   of   the       trucking    company.       Barraza

agreed to send money so that Delagarza could return to Texas and

said he did not know “how much” was in the truck, but that

Delagarza should get a receipt for it.                 Delagarza later recorded

two   conversations      with    Garcia       in     Texas,    during     which      they

discussed preparations for two more trips using a blue truck and

transporting 2000 “pesos” to Charlotte, North Carolina.                              Drug

Enforcement Administration (DEA) Agent Hurst, who helped conduct



                                          2
the investigation in Texas, testified that the defendants used

the term “pesos” to mean pounds.

             On March 19, 2007, Delagarza recorded audio and video

tape of a truck being loaded at a warehouse leased by Barraza.

The   lights   in   the    warehouse   were    dimmed   while   packages    were

loaded first, then the lights were turned back on and a forklift

was used to fill the truck with pallets of produce.                      Garcia,

Ruben Barraza, Edgar Barraza, and co-defendant Juan Garza were

present, with Barraza operating the forklift.

             Federal agents kept the truck under surveillance and

unloaded produce and more than 2000 pounds of marijuana from the

truck   shortly     afterward.      The     marijuana   was   flown   to   North

Carolina.      Delagarza drove the truck to Charlotte, where the

agents reloaded the marijuana onto the truck.                 Delagarza called

Barraza on March 22, 2007, and was told to go to a warehouse

leased to co-defendant Patrick Schwenke.                After the marijuana

was unloaded by Schwenke, Juan Sanchez-Solorzano, and others,

they were arrested, as was co-defendant Sharu Bey, who arrived

to buy marijuana.          On the same day, Garcia and Garza sent a

moneygram to Delagarza.

             In April and at the end of May 2007, Delagarza drove

loads   of   marijuana     to   Indianapolis,     Indiana,    and   to   Durham,

North   Carolina,     as    directed   by     Barraza   and   Garcia.      Ruben

Barraza and Garcia were arrested in June 2007.                  Edgar Barraza

                                       3
became a fugitive.           Garcia, Barraza, and Bey went to trial and

were    convicted     on     all     counts.        Garza,       Schwenke,           Sanchez-

Solorzano,     and    two    other    co-defendants        entered        guilty       pleas;

however,     only     Sanchez-Solorzano             testified        at        the     trial.

Delagarza     was    expected       to     testify,      but    disappeared          shortly

before the trial began.

            Before     trial,       the     government      moved     to       admit    tape

recordings of the monitored conversations between Delagarza and

defendants Barraza and Garcia.                   The district court granted the

motion, finding that the defendants’ inability to cross-examine

Delagarza did not violate the Confrontation Clause because the

recorded conversations were among co-conspirators.                               The court

held that Delagarza’s statements were not hearsay because they

were not offered for “the truth of the matter asserted,” Fed. R.

Evid.   801,    but    to     provide       a    context       for   the       defendant’s

statements.     The government requested a limiting instruction, to

which the court agreed.

            During      the       trial,     Garcia       and    Barraza         expressed

frustration at Delagarza’s absence.                 Garcia’s attorney asked DEA

Agent Patina, who was in charge of the Charlotte investigation,

if he knew where Delagarza was, although Barraza’s attorney did

not agree that the question should be asked.                     Patina said he did

not know.      At the close of the government’s evidence, Garcia’s

attorney    informed        the    court    that    he    intended        to    request     a

                                             4
missing witness instruction; later, he decided not to do so.

Garcia    did     point      out   in     his       closing      argument         that    neither

Delagarza nor Schwenke had testified.

            In     sentencing        Garcia,         the     district        court       held    him

responsible for over 4000 kilograms of marijuana, resulting in a

base    offense    level      of    34,    U.S.       Sentencing           Guidelines      Manual

§ 2D1.1(c)(3) (2007), as recommended in the presentence report.

The court decided that Garcia had a managerial or supervisory

role,     USSG    § 3B1.1(b),           rather        than       a    leadership         role,     a

determination         with   which      defense        counsel        agreed.        The     court

determined that a gun found in Garcia’s desk at his body shop

next to a telephone used for calls to co-conspirators warranted

an enhancement under USSG § 2D1.1(b)(1).                             Garcia’s offense level

was 38.     He was in criminal history category I, which gave him

an advisory guideline range of 262-327 months.                                    The district

court sentenced him to a term of 280 months.

            On         appeal,           Garcia            first           challenges            the

manager/supervisor role adjustment.                        Because he did not contest

the district court’s decision at sentencing, our review is for

plain    error.        United      States       v.    Olano,         507   U.S.    725,    732-37

(1993).      Garcia       contends        that       the   district         court    failed      to

analyze the factors set out in Application Note 3 to § 3B1.1 as

significant      to    the    determination           of     a   defendant’s         role.       He

further argues that the trial evidence was ambiguous as to his

                                                5
role in the conspiracy and showed only Barraza in a leadership

position.        However, the audio and videotapes recorded Garcia

speaking authoritatively with Delagarza about future shipments,

as well as participating in sending money to Delagarza after the

Charlotte delivery.             Both Delagarza and Garza described Garcia

as “involved” with all the known shipments.                         Garza said Garcia

directed and organized shipments and had paid him for his work

on one shipment.              With this evidence before it, the district

court     did    not    plainly       err     in     finding      that     Garcia      had     a

managerial or supervisory position in the conspiracy.

            Garcia next contests the weapon enhancement.                               A two-

level     increase       is     authorized         under      § 2D1.1(b)(1)           if     the

defendant       possessed      a     dangerous       weapon      during     the     offense.

Application      Note    3     to    § 2D1.1       explains      that    the   enhancement

“should    be    applied       if   the     weapon    was     present,     unless      it     is

clearly    improbable         that     the    weapon       was    connected       with       the

offense.”        The    district       court’s       factual     finding       that    Garcia

possessed a dangerous weapon during the offense is reviewed for

clear error.           United States v. McAllister, 272 F.3d 228, 234

(4th Cir. 2001).         The government “need only show that the weapon

was present during the relevant illegal drug activity.”                                      Id.

Pertinent factors the court may consider are the type of weapon

and its location.            United States v. Manigan, ___ F.3d ___, 2010

WL 298031, at *5-6 (4th Cir. Jan. 26, 2010).                            Courts have noted

                                               6
that drug dealers are more likely to use handguns than long

guns.    Id. at *5.        Also, the accessibility of firearms during

drug activities is a relevant factor.              Id. at *6.

             Here, Patina testified at Garcia’s sentencing that the

DEA    agents    in   Texas     learned   that    meetings      relating   to   the

conspiracy were held in Garcia’s body shop.                     This information

was corroborated by Garza.             The gun was found in Garcia’s desk

next    to   a   phone   used    for   calls     related   to   the   conspiracy.

Garcia argues that the district court clearly erred in relying

on Patina’s testimony rather than his own assertion that he had

found the gun in a vehicle being worked on in the body shop.                    He

points out that the gun was not mentioned in trial testimony and

that Patina did not specify how many meetings there were, who

was present, or what was discussed.                     He also maintains that

Garza was an unreliable source of information because, when he

first began to cooperate, he did not admit the full extent of

his participation in the conspiracy.               However, we conclude that

the district court did not clearly err in rejecting Garcia’s

assertion that the gun’s presence in his desk was accidental and

finding that it was not clearly improbable that the gun was

connected to the conspiracy.

             Garcia      next     contends       that    the    district    court

considered unreliable and unsubstantiated evidence to find him

responsible for 4790.45 kilograms of marijuana and concedes only

                                          7
that he was properly held responsible for the marijuana shipped

to Charlotte, which was slightly less than 1000 kilograms.                                         We

review the district court’s calculation of the quantity of drugs

attributable to a defendant for sentencing purposes for clear

error.        United States v. Randall, 171 F.3d 195, 210 (4th Cir.

1999).     “A defendant’s base offense level under the Guidelines

for drug conspiracy cases is determined by the amount of drugs

“reasonably foreseeable to him within the scope of his unlawful

agreement.”         United States v. Lamarr, 75 F.3d 964, 972 (4th Cir.

1996).        The     government       must      establish          the    quantity        of   drugs

attributable to a defendant by a preponderance of the evidence

and may do so through the introduction of relevant and reliable

evidence.        United States v. Jones, 31 F.3d 1304, 1316 (4th Cir.

1994).        “Where there is no drug seizure or the amount seized

does    not    reflect         the    scale     of      the   offense,         the   court      shall

approximate         the    quantity        of    the     controlled         substance.           USSG

§ 2D1.1,      cmt.     n.12.          “The      district        court     is    afforded        broad

discretion       as       to   what    information            to    credit      in    making      its

calculations.”             United States v. Cook, 76 F.3d 596, 604 (4th

Cir.    1996)       (internal        quotation          marks      omitted).         “A    district

court may properly convert cash amounts linked credibly to the

defendant’s purchase or sale of narcotics” as long as the court

does not double count the proceeds and the drugs, and “[d]irect

or     hearsay       testimony        of      lay       witnesses         . . .      can    provide

                                                    8
sufficiently reliable evidence of quantity.”                          United States v.

Sampson, 140 F.3d 585, 592 (4th Cir. 1998) (internal citations

omitted).

               Garcia contends that only Delagarza connected him to

the $1.2 million seized in Mississippi (1869.69 kilograms of

marijuana      equivalent)      and   that       Delagarza      was    not    a   credible

source    of    information.          However,      Delagarza’s         phone     call    to

Barraza    established         Barraza’s     connection         to    the     money     when

Barraza    encouraged        Delagarza      to    get    a     receipt      for   it,    and

Delagarza’s      subsequent       recorded       conversation         with    Garcia     and

videotape       of    Garcia    and   Barraza       loading      marijuana        together

established the conspiratorial relationship between Garcia and

Barraza.       Thus, Delagarza’s claim that Garcia was also involved

with the shipments to Indianapolis (616.44 kilograms) and Durham

(861.84 kilograms) was not incredible.                        Garza said Garcia paid

him   $1000     for    his     assistance       with    one     of    those    shipments.

Further,       Garcia’s      involvement     with       the    Durham    delivery        was

corroborated by Garza.             Garcia argues that Patina’s statement

that $300 per pound was the price for marijuana in Texas was

speculative.         However, Garcia did not inquire about the source

of Patina’s information during his cross-examination of Patina.

               Finally, Garcia argues that no evidence connected him

to the 453.6 kilograms of marijuana derived from ledgers or logs

of prior drug transactions seized from Schwenke’s warehouse in

                                            9
Charlotte.         While     this       claim       appears       to    have    some       merit,

reducing     the     total    quantity         attributed          to     Garcia      by     453.6

kilograms leaves a total of 4336.85 kilograms, well within the

range of 3000-10,000 kilograms for base offense level 34.                                    Thus,

any error in attributing the 453.6 kilograms to Garcia did not

affect   his     sentence.         We    conclude          that    credible         evidence    of

Garcia’s    direct     involvement            with    at    least       3000    kilograms        of

marijuana      was    presented          to     the        district       court,       and      its

determination that Garcia was responsible for that amount was

not clearly erroneous.

            Garcia also asserts that the evidence was insufficient

to support the jury’s guilty                   verdict.         A jury conviction in a

criminal     case     must        be    sustained          if     there    is       substantial

evidence, taking the view most favorable to the government, to

support it.        United States v. Cameron, 573 F.3d 179, 183 (4th

Cir.     2009)       (internal          quotation           and        citation       omitted).

Substantial evidence is evidence that a reasonable finder of

fact   could     accept      as    adequate          and    sufficient         to    support      a

conclusion of a defendant’s guilt beyond a reasonable doubt.

Id.    The reviewing court must consider circumstantial as well as

direct   evidence      and    allow      the     government         the    benefit         of   all

reasonable inferences from the facts proven to those sought to

be established.        Id.



                                               10
            Garcia       argues     that        all    of    his        activities     and

conversations that were in evidence at trial were consistent

with     legitimate,     non-criminal        business        and    social       conduct.

However, the verdict was supported by Garcia’s presence with

Barraza    at     the    warehouse    when       the    truck      was     loaded    with

marijuana,       his    recorded     conversations          with    Delagarza        about

future     deliveries       (even    though       marijuana        was     not   overtly

discussed), and his presence with Garza when money was wired to

Delagarza after the marijuana was delivered in Charlotte.                             This

evidence was sufficient to permit the inference that Garcia was

conspiring with Barraza, Delagarza, and others to traffic in

marijuana.       Therefore, this issue is without merit.

            Last, Garcia claims that his attorney was ineffective

at trial in failing to move for an acquittal at the close of the

government’s case and at the close of all evidence.                              He also

argues    that    his    attorney     was       ineffective        at    sentencing    in

conceding that an adjustment for a manager or supervisor role

was appropriate.          Claims of ineffective assistance of counsel

are generally not cognizable on direct appeal.                      United States v.

King, 119 F.3d 290, 295 (4th Cir. 1997).                     Rather, to allow for

adequate development of the record, a defendant must bring his

claim in a 28 U.S.C.A. § 2255 (West Supp. 2009) motion.                                See

id.; United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994).

An   exception     exists    when    the    record      conclusively        establishes

                                           11
ineffective assistance.             United States v. Richardson, 195 F.3d

192, 198 (4th Cir. 1999); King, 119 F.3d at 295.

              Here, Garcia’s claim is in part factually incorrect

because his attorney did make a Rule 29 motion for acquittal at

the close of the government’s case and at the close of all

evidence.       Further, the record does not establish conclusively

that    his     attorney      was     ineffective        in     conceding      that     a

manager/supervisor           role      adjustment          should      be      applied.

Therefore,      Garcia’s      claim    of    ineffective        assistance     is     not

cognizable in this appeal.

              Accordingly,     we     affirm      the   sentence    imposed     by    the

district      court.    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




                                            12
