                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4788


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ALFRED BUENSALIDA, a/k/a JJ,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:11-
cr-00061-RWT-1)


Submitted:   July 29, 2013                 Decided:   August 7, 2013


Before KING, GREGORY, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas J. Saunders, LAW OFFICE OF THOMAS J. SAUNDERS, Baltimore,
Maryland, for Appellant. Adam Kenneth Ake, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Alfred Buensalida appeals his conviction and the 180-

month sentence imposed after he was found guilty by jury of

conspiracy to distribute and possess with intent to distribute

fifty   or     more    grams      of    methamphetamine,          in    violation     of    21

U.S.C. § 846 (2006).               Counsel for Buensalida filed a brief in

accordance      with      Anders       v.   California,       386      U.S.   738    (1967),

certifying that there are no meritorious issues for appeal but

questioning: (1) whether the district court erred in denying

Buensalida’s        motions       to    dismiss     for      lack      of   venue    and   to

transfer venue; (2) whether the district court erred in failing

to suppress wiretap evidence; (3) whether the district court

erred     in    failing      to    suppress        Buensalida’s         confession;        and

(4) whether the evidence was sufficient to support Buensalida’s

conviction.        Buensalida has filed a pro se supplemental brief,

repeating the issues raised by counsel and raising the following

additional         issues:        (1)       whether       trial        counsel      provided

ineffective assistance; (2) whether the district court erred in

attributing        over    500     grams      of      methamphetamine         to    him     at

sentencing; (3) whether the district court erred in applying a

two-level sentencing enhancement for possessing a firearm; (4)

whether the district court erred in applying statutory penalties

of a minimum of ten years and a maximum of life in prison; (5)

whether      the    district       court      erred     in    imposing        a    disparate

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sentence;        and   (6)    whether             the     district     court     improperly

instructed the jury.           The Government has elected not to file a

brief.       For the reasons that follow, we affirm.

                                                  I.

               We first address the issue of venue.                           We review the

district court’s denial of a motion to dismiss for lack of venue

de novo.        United States v. Engle, 676 F.3d 405, 412 (4th Cir.),

cert.        denied,   133    S.       Ct.    179        (2012).        The     Constitution

guarantees a criminal defendant the right to be tried in the

district where his offense was committed.                              U.S. Const., art.

III, § 2; amend. VI; United States v. Rodriguez-Moreno, 526 U.S.

275,    276-82     (1999).         A   conspiracy          may    be   prosecuted    in   any

district where some act in furtherance of the conspiracy was

committed.        United States v. Gilliam, 975 F.2d 1050, 1057 (4th

Cir. 1992).        Whether a particular defendant was ever physically

present in the district may be irrelevant to the issue of venue.

See United States v. Al-Talib, 55 F.3d 923, 928 (4th Cir. 1995).

If     the     defendant     objects         to        venue,    the   matter    should   be

submitted to the jury if there is any genuine issue of material

fact.    Engle, 676 F.3d at 413.

               We review the district court’s denial of a motion to

transfer venue for abuse of discretion.                          United States v. Heaps,

39 F.3d 479, 482-83 (4th Cir. 1994), abrogated on other grounds

by United States v. Cabrales, 524 U.S. 1 (1998).                                In deciding

                                                  3
whether to grant a motion to transfer venue, the district court

should consider the factors enumerated by the Supreme Court in

Platt v. Minn. Mining & Mfg. Co., 376 U.S. 240 (1964).

               We conclude that the evidence fully supported venue in

Maryland.       Although Buensalida resided in California throughout

the conspiracy, various acts in furtherance of the conspiracy

occurred       in     Maryland,        including         Buensalida’s        shipment    of

methamphetamine            to   Maryland,     his      coconspirator’s       shipment    of

cash from Maryland, and the distribution of methamphetamine in

Maryland.       Moreover, Buensalida cannot claim that he was unaware

of the acts that occurred in Maryland.                            Finally, out of an

abundance of caution, the district court submitted the venue

issue     to        the     jury,     and     the       jury     convicted     Buensalida

nonetheless.         Engle, 676 F.3d at 413.               Accordingly, the district

court properly denied Buensalida’s motion to dismiss for lack of

venue.

               As    for     the    motion    to      transfer    venue,   the   district

court properly considered the Platt factors before denying the

motion.     Heaps, 39 F.3d at 483.                   Accordingly, the district court

did not abuse its discretion.

                                              II.

               We     next      address      the      district     court’s     denial    of

Buensalida’s motion to suppress wiretap evidence.                          We review the

factual    findings          underlying      a       district    court’s   ruling   on    a

                                                 4
motion to suppress for clear error and the legal conclusions de

novo.      United States v. Kelly, 592 F.3d 586, 589 (4th Cir.

2010).     Wiretaps should not be routinely employed, but rather

reserved       for      instances        where         necessary         because       normal

investigative         techniques     would        be    inadequate        to     expose     the

crime.     18 U.S.C. § 2518(3)(c) (2006); United States v. Smith,

31 F.3d 1294, 1297 (4th Cir. 1994).                       The Government bears the

burden    of    showing    “necessity,”           however,        this    burden       is   not

great.     Id.        The Government’s showing should “be tested in a

practical and commonsense fashion that does not hamper unduly

the    investigative       powers     of      law      enforcement        agents.”          Id.

(internal quotation marks and citations omitted).                           We review the

district court’s finding of “necessity” for abuse of discretion.

United States v. Wilson, 484 F.3d 267, 281 (4th Cir. 2007).

               The district court did not abuse its discretion in

finding     “necessity.”           The     Government        established           necessity

through the wiretap application, which included a seventy-four

page    affidavit,      thoroughly       explaining         how    investigators            were

having     difficulty      infiltrating           the    conspiracy,            that   normal

investigative         techniques    would         be    problematic        because      video

surveillance      could     be     easily      detected      and     executing         search

warrants would be premature, and that wiretaps would likely be

effective      because    members     of      the      conspiracy        used    the   target

telephones       in    furtherance       of       illicit    narcotics           activities.

                                              5
Considering          the     detailed       showing       contained       in    the        wiretap

application,         the     finding       of     necessity      was    not     an    abuse    of

discretion.           Smith,        31    F.3d    at     1297.      The    district         court

therefore       properly        denied          Buensalida’s       motion       to     suppress

wiretap evidence.

                                                III.

               We next address whether the district court properly

admitted       Buensalida’s          confession.          The    district       court       denied

Buensalida’s motion to suppress his confession upon finding that

Buensalida       voluntarily             waived    his    Miranda       rights.            Miranda

warnings are required when a suspect is interrogated while in

custody.       Miranda v. Arizona, 384 U.S. 436 (1966).                          Accordingly,

a     statement       taken     in       violation       of    Miranda     is    subject       to

suppression.           Id.      However, a suspect may waive his Miranda

rights and voluntarily submit to interrogation, in which case

his custodial statements will be admissible.                              United States v.

Hicks,    748     F.2d       854,    859     (4th      Cir.    1984).      In     determining

voluntariness, the critical question is whether the suspect’s

will     has      been       “overborne”          or     his     “capacity           for    self-

determination critically impaired.”                           United States v. Pelton,

835     F.2d     1067,        1071-72        (4th      Cir.      1987).          Nonetheless,

“government agents may validly make some representations to a

defendant       or    may     discuss        cooperation         without       rendering      the



                                                  6
resulting confession involuntary.”                   United States v. Shears, 762

F.2d 397, 401 (4th Cir. 1985).

             The district court properly denied Buensalida’s motion

to suppress the confession.               The evidence showed that Buensalida

was read his rights and signed a written waiver.                                    Buensalida

claims     his    waiver     and     confession           were       involuntary         because

officers told him if he did not cooperate he would face harsher

penalties.        However,       even   assuming         the       officers      made    such   a

statement,        that     would    not       render          Buensalida’s          confession

involuntary.       Id.     Because the evidence supports a finding that

Buensalida voluntarily waived his Miranda rights, the district

court properly admitted his confession.                       Hicks, 748 F.2d at 859.

                                             IV.

             We    next     review      the        sufficiency         of     the       evidence

supporting       Buensalida’s      conspiracy         conviction.             We    review      de

novo   the   district       court’s       denial         of    a    Rule    29     motion    for

judgment of acquittal.              United States v. Green, 599 F.3d 360,

367 (4th Cir. 2010).             We review the sufficiency of the evidence

supporting a conviction by determining whether, in the light

most favorable to the Government, there is actual substantial

evidence     in    the     record       to    support          the    conviction.            Id.

“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.”

                                              7
Id.   (internal quotation marks and citation omitted).                            Reversal

on grounds of insufficient evidence is appropriate only in cases

where the Government’s failure to present substantial evidence

is clear.     Id.

             Buensalida was convicted of conspiracy to distribute

and   possess       with    intent    to    distribute         methamphetamine.            To

obtain   a    conviction,       the     Government          was   required      to    prove:

(1) the existence of an agreement to distribute and possess with

intent to distribute methamphetamine (that is, a conspiracy);

“(2) the defendant’s knowledge of the conspiracy; and (3) the

defendant’s         knowing     and        voluntary        participation            in   the

conspiracy.”         Id.     A defendant may be a knowing and voluntary

member   of     a    conspiracy       without        knowing      its    full    scope     or

participating in its full range of activities.                          United States v.

Burgos, 94 F.3d 849, 858-59 (4th Cir. 1996).

             Buensalida contends the Government has failed to prove

his participation in a conspiracy in Maryland as opposed to a

conspiracy      in    California.          However,         the   Government      was     not

required to prove venue as an element of the offense.                                     See

Engle, 676 F.3d at 412 (venue is not a substantive element of a

crime and accordingly need only be proved by a preponderance of

the   evidence).           Regardless,      the      evidence     clearly       showed    the

existence     of     a     conspiracy      to       distribute     methamphetamine         in

Maryland     and     Buensalida’s      knowing        and   voluntary      participation

                                                8
therein.      Green, 599 F.3d at 367.                     We therefore conclude that

substantial             evidence          supports         Buensalida’s             conspiracy

conviction.

                                              V.

              We     next       address    Buensalida’s             claim    of    ineffective

assistance of counsel.              Buensalida raises various allegations of

deficient          performance,        but        fails        to      allege       prejudice.

Strickland v. Washington, 466 U.S. 668, 687-88 (1984).                                 Because

the record does not conclusively show ineffective assistance,

Buensalida’s claim is not cognizable on direct appeal.                                  United

States v. King, 119 F.3d 290, 295 (4th Cir. 1997).

                                              VI.

              We next review Buensalida’s challenge to the district

court’s findings regarding drug quantity.                             The Government must

prove   the    drug       quantity        attributable         to    the    defendant       by   a

preponderance of the evidence.                      United States v. Carter, 300

F.3d 415, 425 (4th Cir. 2002).                     The district court may rely on

drug-related        facts       included     in     the    presentence         investigation

report unless the defendant shows that information is inaccurate

or unreliable.            Id.    A district court’s findings regarding drug

quantity    are         generally    factual       in     nature,      and    therefore      are

reviewed by this court for clear error.                        Id.

              “Sentencing           judges     may        find       facts        relevant       to

determining         a    Guidelines        range     by    a     preponderance         of    the

                                               9
evidence,      so   long     as   that           Guidelines      sentence     is    treated     as

advisory and falls within the statutory maximum authorized by

the jury’s verdict.”              United States v. Benkahla, 530 F.3d 300,

312 (4th Cir. 2008).                The district court properly found by a

preponderance of the evidence that Buensalida was responsible

for over 500 grams of pure methamphetamine.                           Carter, 300 F.3d at

425.       The court’s finding is supported by information contained

in     the    presentence          investigation              report;        testimony         from

investigating        agents,        a    forensic          chemist,      and       Buensalida’s

coconspirators;        and    by        the       physical    evidence       of     the    seized

methamphetamine.           We therefore conclude that the district court

properly calculated Buensalida’s drug quantity. *

                                                  VII.

              We     next     consider               Buensalida’s       challenge         to   the

application of a two-level sentencing enhancement for possessing

a    dangerous      weapon.         Section           2D1.1(b)(1)       of   the     Sentencing

Guidelines         provides       for        a       two-level     enhancement        where       a

dangerous      weapon,       such       as       a    firearm,    was    possessed.            The

district court decides whether to apply the enhancement by a


       *
       We are not persuaded by Buensalida’s contention that the
district court’s finding that he was responsible for over 500
grams of pure methamphetamine conflicted with the jury’s
determination that he was responsible for fifty grams or more of
pure methamphetamine.     The jury’s and the district court’s
findings are completely consistent.



                                                     10
preponderance of the evidence, and its findings ordinarily will

be reversed only if clearly erroneous.                  United States v. Apple,

915 F.2d 899, 914 (4th Cir. 1990).                 However, because Buensalida

failed to raise the issue below, he will be entitled to relief

only upon a showing of plain error.                    United States v. Walker,

112 F.3d 163, 165 (4th Cir. 1997).

              We conclude that the district court properly applied

the     firearm     enhancement.           Ample       evidence     supported      the

enhancement, including evidence that Buensalida conducted some

of     the   methamphetamine        transactions       from   his   home,   that    a

firearm      was   found    at    his   home,    and   that   cellphone     pictures

established his possession of firearms during the time of the

conspiracy.

                                         VIII.

              We next address Buensalida’s challenge regarding his

statutory penalties.             Buensalida challenges the increase in his

statutory penalties from five to forty years, to ten years to

life in prison, based on Apprendi v. New Jersey, 530 U.S. 466

(2000).       Buensalida’s statutory penalties were increased based

on a drug quantity of fifty or more grams of methamphetamine.

21 U.S.C. § 841(b)(1)(A)(viii).                Under Apprendi, drug quantities

that    increase     a     defendant’s     statutory      maximum    sentence   are

considered elements of the offense, and must be charged in the

indictment and found by the jury beyond a reasonable doubt.                     The

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Supreme Court has recently extended this rule to the context of

statutory minimum sentences.               Alleyne v. United States, 133 S.

Ct. 2151, 2156 (2013).              Here, the drug quantity was properly

charged   in    the    indictment         and    found    by   the   jury      beyond    a

reasonable     doubt.        Accordingly,        the     district    court      properly

applied the increased statutory penalties.

                                           IX.

              We next consider Buensalida’s claim of an unwarranted

sentencing disparity.             Buensalida alleges he played the role of

a mere “middle-man,” that he has little prior criminal history

compared to his coconspirators, and that he unfairly received a

fifteen-year     sentence         while    his    coconspirators         received       six

years or less.        However, a disparity between the sentences of a

defendant who pleads guilty and one who proceeds to trial is not

an unwarranted disparity.            See United States v. Offill, 666 F.3d

168,    179    (4th    Cir.       2011)    (holding       disparate      sentence       of

defendant who proceeded to trial reasonable), cert. denied, 132

S. Ct. 1936 (2012).

              Construed liberally, Buensalida’s claim challenges the

reasonableness        of    his   sentence.        We     review     a   sentence       for

reasonableness, applying an abuse of discretion standard.                           Gall

v. United States, 552 U.S. 38, 46 (2007).                      We first review for

significant      procedural        error—including         whether       the    district

court   improperly         calculated     the    Guidelines     range,         failed   to

                                           12
consider the § 3553(a) factors, or failed to adequately explain

its     sentence—and       only     if       we        find     a    sentence      procedurally

reasonable      will     we     then    consider          substantive          reasonableness.

Gall, 552 U.S. at 51.              Substantive reasonableness is determined

considering      the     totality       of       the     circumstances,           including    the

extent    of    any     variance       from       the    Guidelines         range.      Id.      A

sentence within or below a properly calculated Guidelines range

is presumed substantively reasonable.                               United States v. Susi,

674 F.3d 278, 289 (4th Cir. 2012).

               Our review of the record reveals that the district

court     properly       considered          the        various        §    3553(a)    factors—

including the seriousness of Buensalida’s offense and the need

to avoid unwarranted sentencing disparities—prior to sentencing

Buensalida.             Discerning          no     other            procedural      error,     and

considering       the     totality          of     the        circumstances        including     a

generous       downward       variance,           we     conclude          that    Buensalida’s

sentence is both procedurally and substantively reasonable.

                                                  X.

               Finally,       we   consider            Buensalida’s           claim   that     the

district    court       improperly          instructed          the    jury    regarding      drug

quantity.       Buensalida contends the district court erred in only

instructing       the      jury        to        determine           the    amount     of     pure

methamphetamine—and not also the amount of a mixture containing

methamphetamine           or,      simply,              “methamphetamine”—for                which

                                                  13
Buensalida    was    responsible.       In     reviewing   an   improper   jury

instruction claim, the key issue is “whether, taken as a whole,

the   instruction     fairly   states    the    controlling     law.”   United

States v. Cobb, 905 F.2d 784, 788-89 (4th Cir. 1990).                       The

defendant must raise his objection to a jury instruction in the

district court in order to fully preserve the issue for appeal;

if he does not, the issue is subject only to plain error review.

Fed. R. Crim. P. 52(b);         United States v. Olano, 507 U.S. 725,

731-32 (1993).       Furthermore, under the “invited error” doctrine,

a defendant will not be permitted to challenge on appeal a jury

instruction he requested.            United States v. Collins, 372 F.3d

629, 635 (4th Cir. 2004).

            We discern no error in the contested jury instruction.

First, Buensalida failed to raise this objection below.                 Second,

he    in   fact     proposed   the    contested     jury    instruction    and

corresponding special verdict form.              Finally, Buensalida fails

to appreciate that the Government presented evidence not only of

the amount of methamphetamine he distributed, but also of its

purity, thus allowing the jury to determine the amount of pure

methamphetamine for which he was responsible.                   The additional

instruction       would   therefore     have    been   wholly     superfluous.

Accordingly, Buensalida’s claim fails.




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                                          XI.

            In accordance with Anders, we have reviewed the entire

record in this case and found no meritorious issues for appeal.

We    therefore    affirm    the   district     court’s    judgment.       We    deny

Buensalida’s       motion    for   appointment     of   counsel.       This     court

requires    that       counsel   inform   Buensalida,      in   writing,    of    the

right to petition the Supreme Court of the United States for

further review.         If Buensalida requests that a petition be filed

but counsel believes that such a petition would be frivolous,

then counsel may move in this court for leave to withdraw from

representation.         Counsel’s motion must state that a copy thereof

was    served     on    Buensalida.       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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