                                   UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 17-4668


UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,

             v.

ALEXANDER SANTIAGO, a/k/a Aye Eye,

                   Defendant - Appellant.



                                     No. 17-4743


UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,

             v.

ALEXANDER JESUS SANTIAGO,

                   Defendant - Appellant.



Appeals from the United States District Court for the Eastern District of Virginia, at
Richmond and Newport News. Henry Coke Morgan, Jr., Senior District Judge. (3:09-cr-
00299-HCM-1; 4:17-cr-00017-HCM-LRL-1)


Submitted: July 27, 2018                                     Decided: August 2, 2018
Before DUNCAN and KEENAN, Circuit Judges, and SHEDD, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Mark Diamond, Richmond, Virginia, for Appellant. Tracy Doherty-McCormick, Acting
United States Attorney, Alexandria, Virginia, Richard D. Cooke, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       In these consolidated appeals Alexander Jesus Santiago appeals his convictions for

conspiracy to distribute and possess with intent to distribute heroin, in violation of 21

U.S.C. § 846 (2012), two counts of distribution of heroin, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(C) (2012), and possession with intent to distribute heroin, in violation

of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2 (2012), and he challenges the

sentence imposed upon revocation of his supervised release. Santiago first argues that

the district court erred in failing to suppress evidence seized during a traffic stop.

Second, he asserts that the evidence is insufficient to support three counts of conviction.

Third, Santiago contends that the court erred in allowing testimony and evidence related

to a small quantity of oxycodone that was seized during the traffic stop. Finally, Santiago

argues that his revocation sentence is unreasonable. We affirm.

       As to the January 5, 2017, traffic stop, Santiago contends that the automobile stop

and subsequent search were unlawful because police lacked probable cause to believe

that Santiago was involved in a crime, and the roadside search of Santiago, which

entailed an officer reaching into Santiago’s pants, was overly intrusive. “In reviewing a

district court’s ruling on a motion to suppress, this Court reviews conclusions of law

de novo and underlying factual findings for clear error.” United States v. Clarke, 842

F.3d 288, 293 (4th Cir. 2016) (brackets and internal quotation marks omitted). Where the

district court has denied a defendant’s motion to suppress, “we construe the evidence in

the light most favorable to the government.” Id. (internal quotation marks omitted).



                                             3
       “An automobile stop . . . is subject to the reasonableness requirement of the Fourth

Amendment.” United States v. Bowman, 884 F.3d 200, 209 (4th Cir. 2018). “[I]n

determining whether a traffic stop is reasonable, . . . [this] court asks (1) if the stop was

legitimate at its inception, and (2) if the officer’s actions during the seizure were

reasonably related in scope to the basis for the traffic stop.” Id. (citations and internal

quotations marks omitted).     “An officer’s initial ‘decision to stop an automobile is

reasonable where the police have probable cause to believe that a traffic violation has

occurred.’” Id. (quoting Whren v. United States, 517 U.S. 806, 810 (1996)). “Probable

cause exists when ‘the known facts and circumstances are sufficient to warrant a man of

reasonable prudence in the belief that contraband or evidence of a crime will be found.’”

United States v. Patiutka, 804 F.3d 684, 690 (4th Cir. 2015) (quoting Ornelas v. United

States, 517 U.S. 690, 696 (1996)).

       Viewing the facts in the light most favorable to the prosecution, we conclude that

police possessed sufficient probable cause to stop the vehicle in which Santiago traveled.

The district court determined that video evidence of the traffic stop supported the

officer’s assertion that a traffic violation occurred, and Santiago points to no evidence

contradicting that finding. Thus, the district court did not clearly err in concluding that

the initial stop was valid. Clarke, 842 F.3d at 293.

       Second, Santiago contends that police did not have a probable cause to subject him

to an intrusive search on the side of the interstate when a Virginia State Police trooper

reached into Santiago’s pants to retrieve a bundle of drugs from a compartment in his

underwear. In assessing the reasonableness of an invasive search, we “balance the

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invasion of personal rights caused by the search against the need for that particular

search,” examining the search in context and considering: “(1) the scope of the particular

intrusion; (2) the manner in which the search was conducted; (3) the justification for

initiating the search; and (4) the place in which the search was performed.” Sims v.

Labowitz, 885 F.3d 254, 261 (4th Cir. 2018). We conclude that, based on the manner of

the search, all four factors militate in favor of the Government, and the search was thus

reasonable under the circumstances.

       As to the sufficiency of the evidence, we “review the denial of a motion for

judgment of acquittal de novo” and “will uphold the verdict if, viewing the evidence in

the light most favorable to the government, it is supported by substantial evidence, which

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.” United States v.

Savage, 885 F.3d 212, 219 (4th Cir. 2018) (internal quotation marks omitted). “[W]e are

not entitled to assess witness credibility, and we assume that the jury resolved any

conflicting evidence in the prosecution’s favor.” Id. (internal quotation marks omitted).

Finally, “we allow the government the benefit of all reasonable inferences from the facts

proven to those sought to be established.” Id. at 219-20.

       With regard to Count 2, viewed in the light most favorable to the Government,

Vernon Jones acted as a middleman who facilitated the September 28, 2016, heroin sale

between Santiago and the CI: Santiago set the price of heroin at the initial meeting and

finalized the price while the CI and Jones discussed the sale over the phone. Although

there is no direct evidence that Santiago supplied the heroin sold that day, it is reasonable

                                             5
to infer that Santiago was the heroin supplier because: (1) Jones and the CI had to wait

two hours for Santiago to arrive before conducting the transaction; (2) Santiago arrived

carrying an open chip bag that appeared to be weighted with something heavy; (3) the

sale was completed within 10 minutes of Santiago’s arrival; and (4) although the CI

exchanged the heroin and money with Jones, Jones subsequently handed the money

directly to Santiago.

       As to Count 4, the CI called Santiago and arranged to purchase eight ounces of

heroin. The two arranged to meet on January 5, 2017, to conduct the transaction. The CI

called Santiago that day and informed Santiago that he would be at the arranged meeting

place, a mall, in 15 or 20 minutes; Santiago responded that he would take longer to

arrive, but confirmed that he was still going to the mall to conduct the transaction. Police

stopped and arrested Santiago soon thereafter. When Santiago was searched, police

discovered the hidden bags of heroin. The fact that Santiago arranged to sell heroin in

Williamsburg at a specific location and time, was on his way to Williamsburg, and was

arrested with two small, hidden packages of narcotics, all support the conclusion that the

heroin Santiago possessed was intended for distribution, see United States v. Collins, 412

F.3d 515, 519 (4th Cir. 2005), and, “[w]here physical facts and evidence are capable of

more than one interpretation and reasonable inferences therefrom can be drawn by a jury,

its verdict should not be disturbed.” United States v. Gomez-Jimenez, 750 F.3d 370, 379

(4th Cir. 2014).

       Santiago also contends that the evidence is insufficient to support his conviction

for Count 1, the conspiracy count, because there is no evidence that he conspired with a

                                             6
third party or that any conspiracy involved 100 grams or more of heroin. “To prove

conspiracy, the government must demonstrate beyond a reasonable doubt (1) an

agreement between two or more persons to engage in conduct that violates a federal drug

law, (2) the defendant’s knowledge of the conspiracy, and (3) the defendant’s knowing

and voluntary participation in the conspiracy.” Gomez-Jimenez, 750 F.3d at 378. “Such

an agreement need not be formal and may instead be a tacit or mutual understanding

between the defendant and his accomplice.” Id. (internal quotation marks omitted).

“Circumstantial evidence alone is sufficient to support a conviction for conspiracy.” Id.

(internal quotation marks omitted).

      The Government presented evidence that Jones arranged a meeting between the CI

and Santiago, coordinated the sale of heroin from Santiago to the CI on September 28,

2016, discussed the price of heroin with Santiago and the CI over the phone, and acted as

the middleman during the sale to ensure that Santiago did not directly give the heroin to,

or receive the money from, the CI. This evidence sufficiently establishes that Santiago

agreed with Jones to sell heroin, thereby establishing the necessary agreement to support

a conspiracy conviction. Gomez-Jimenez, 750 F.3d at 378. Moreover, because the

Government produced sufficient evidence to sustain Santiago’s convictions for Counts 2,

3, 1 and 4, the Government proved that the conspiracy involved more than 100 grams of

heroin.


      1
          Santiago does not challenge the sufficiency of the evidence with regard to Count
3.


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       Santiago next argues that the district court erred in permitting the prosecution to

introduce evidence that oxycodone was also seized during the search. “Even if the court

erred in admitting . . . evidence, we reverse only if that error was not harmless.” 2 United

States v. Recio, 884 F.3d 230, 234 (4th Cir. 2018). An evidentiary error is harmless if

“the judgment was not substantially swayed by the error.” United States v. Landersman,

886 F.3d 393, 413 (4th Cir. 2018) (internal quotation marks omitted). Even assuming

that an error occurred, in light of the substantial amount of evidence demonstrating that

Santiago sold and possessed heroin with the intent to distribute, there is no reasonable

probability that the jury verdict was substantially swayed by testimony regarding a small

amount of oxycodone.

       Finally, upon review of the revocation sentence imposed, we conclude that

Santiago has presented no evidence or argument sufficient to overcome the presumption

of reasonableness that is afforded to the below-policy-statement-range sentence imposed.

See United States v. Padgett, 788 F.3d 370, 373 (4th Cir. 2015) (setting forth standard).

       Accordingly, we affirm the district court’s judgments. 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

       2
         The Government contends that Santiago did not properly preserve his evidentiary
arguments, and they are therefore reviewed for plain error, rather than abuse of
discretion. See United States v. Keita, 742 F.3d 184, 189 (4th Cir. 2014) (setting forth
standard of review). Because any alleged error—if one occurred—is harmless, we need
not resolve this issue.


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