                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4892


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DANIEL AGUIRRE CARRANZA,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:10-cr-00005-BR-1)


Submitted:   August 1, 2011                 Decided:   August 18, 2011


Before WILKINSON, NIEMEYER, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Sandra J. Barrett, Attorney, Asheville, North Carolina, for
Appellant.    George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Denise Walker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Daniel Aguirre Carranza pleaded guilty to possessing

with intent to distribute a quantity of cocaine, in violation of

21 U.S.C. § 841(a) (2006).                A jury subsequently found him guilty

of   participating       in    a    conspiracy         to    distribute      500    grams    or

more, but less than five kilograms, of cocaine, in violation of

21 U.S.C. § 846 (2006).                  The district court sentenced Carranza

to concurrent terms of 292 and 240 months in prison for the

conspiracy and distribution convictions, respectively.                              Carranza

appeals   both    his     conviction        at       trial    and   his     sentence.        We

affirm.

            Carranza      claims          that       the    district      court    erred     by

denying his motions for a judgment of acquittal pursuant to Fed.

R. Crim. P. 29.          We review the denial of a Rule 29 motion de

novo.     United States v. Smith, 451 F.3d 209, 216 (4th Cir.

2006).    A defendant challenging the sufficiency of the evidence

faces a heavy burden.              United States v. Beidler, 110 F.3d 1064,

1067 (4th Cir. 1997).              The verdict of a jury must be sustained

“if, viewing the evidence in the light most favorable to the

prosecution,       the        verdict        is        supported       by     ‘substantial

evidence.’”        Smith,          451    F.3d       at     216   (citations       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.”

                                                 2
Id. (internal quotation marks and citations omitted).                         “Reversal

for insufficient evidence is reserved for the rare case where

the prosecution’s failure is clear.”                      Id. (internal quotation

marks and citation omitted).

           Viewing the evidence in the light most favorable to

the   prosecution,       substantial        evidence       sustains     the     verdict

below.      Testimony          established      that       Carranza     made     large,

sometimes multi-kilogram, cocaine sales to multiple purchasers.

One of his customers, Michael Livengood, testified to purchasing

approximately 100 kilograms of cocaine from Carranza over an

eighteen   month       span.      Carranza        would    take     orders     for   the

cocaine,   but    he    would    sometimes      send      others,    namely    his    two

brothers, to deliver it.           In one recorded conversation, Carranza

stated that he had received a shipment of forty kilograms of

cocaine.    In another, he stated that he was paying for the

cocaine lost when his brother was arrested.                         Upon his arrest,

Carranza   told    authorities       that      he   picked    up     cocaine    at    one

residence and deposited the proceeds at another.

           Carranza      argues     that    the     Government’s      evidence       came

solely from the testimony of Livengood, an unreliable source.

We are mindful in our review that “[t]he jury, not the reviewing

court, weighs the credibility of the evidence and resolves any

conflicts in the evidence presented.”                  Beidler, 110 F.3d at 1067

(internal quotation marks and citation omitted).                      Moreover, much

                                           3
of Livengood’s testimony was corroborated both by the recorded

conversations and Carranza’s own statements to authorities.                    In

short, Carranza has failed to carry his heavy burden on appeal.

We affirm his conspiracy conviction.

              Carranza challenges a number of the district court’s

Sentencing Guidelines calculations.                In assessing a sentencing

court’s application of the Guidelines, we review the court’s

legal conclusions de novo and its factual findings for clear

error.       United States v. Harvey, 532 F.3d 326, 336 (4th Cir.

2008).

              Carranza takes issue with the district court’s drug-

weight calculation, as it far exceeded the weight found by the

jury beyond a reasonable doubt.               “But beyond establishing the

maximum sentence, the jury’s drug-quantity determination placed

no constraint on the district court’s authority to find facts

relevant to sentencing.”           United States v. Young, 609 F.3d 348,

357   (4th    Cir.    2010).    Because     of    the   differing    burdens   and

evidentiary rules applicable at sentencing, no conflict exists

between      the      sentencing    court’s       drug-weight       finding    and

Carranza’s conviction.

              Carranza also argues that the district court erred in

enhancing his offense level by two points for his role as an

organizer,      leader,    manager,    or     supervisor      of    the   criminal

activity      under     U.S.   Sentencing        Guidelines   Manual      (“USSG”)

                                        4
§ 3B1.1(c) (2009).            We find that, given the evidence pertaining

to    Carranza’s        use        of     his        brothers        as     deliverymen,        the

enhancement was not clearly erroneous.

            Carranza          next         challenges              the     district         court’s

imposition        of         the         two-level              adjustment,        under       USSG

§ 2D1.1(b)(1),         for     possession            of     a    dangerous     weapon.          The

dangerous weapon 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.3.                To support

the enhancement “the Government does not need to prove precisely

concurrent acts, such as a gun in hand while in the act of

storing drugs.         Rather, proof of constructive possession of the

dangerous weapon is sufficient, and the Government is entitled

to rely on circumstantial evidence to carry its burden.”                                     United

States    v.     Manigan,          592    F.3d        621,       628-29     (4th     Cir.     2010)

(internal quotation marks and citations omitted).                                  “[S]o long as

a    firearm’s    location          makes       it    readily        available       to     protect

either the participants themselves during the commission of the

illegal activity or the drugs and cash involved in the drug

business,      there    will        be    sufficient             evidence     to    connect     the

weapon to the offense conduct.”                       Id. at 629 (internal quotation

marks, brackets, and citation omitted).

            The    evidence             showed       that       Carranza    left     his    loaded

handgun in his vehicle when he went inside a store to consummate

                                                 5
a cocaine transaction.          Although he did not take the gun into

the store with him while he consummated the deal, it was readily

available     to    him   during    the       transportation         phase     of   the

transaction.        We do not find that the district court erred in

applying the enhancement.

             Carranza’s     last   challenge          to    the    district    court’s

Guidelines calculation is to its denial of any offense level

reduction for acceptance of responsibility.                       We review such a

denial for clear error.          United States v. Pauley, 289 F.3d 254,

261   (4th   Cir.    2002).     “[I]n     most    cases       district    courts    are

uniquely     qualified    to    evaluate      whether       to    grant   or   deny   a

sentence reduction for acceptance of responsibility.”                           United

States v. Hargrove, 478 F.3d 195, 198 (4th Cir. 2007).

             Although     the   acceptance       of    responsibility        reduction

“is not intended to apply to a defendant who puts the government

to its burden of proof at trial by denying the essential factual

elements     of     guilt,”     conviction       through          trial   “does     not

automatically preclude a defendant from consideration for such a

reduction.”        USSG § 3E1.1 cmt. n.2.             For instance, a reduction

may still be appropriate where a defendant admits guilt but goes

to trial to preserve a constitutional challenge to a statute.

Id.

             Carranza’s two convictions were properly grouped for

purposes of applying the Guidelines.                       “[O]nce a court groups

                                          6
appropriate counts and determines the initial combined offense

level   for    the     grouped      counts,       it       then   decides        whether    any

adjustments to the offense level—including that for acceptance

of   responsibility—should            be    made       for    the    grouped       offense.”

Hargrove,      478     F.3d    at      199.            A     defendant      must     “accept

responsibility for the grouped guidelines counts in order to be

eligible for the reduction in offense level for that particular

‘offense.’”      Id. at 200.

              Carranza      denied     responsibility             for      the    conspiracy

charge by going to trial on the issue of his guilt, and he

continues to deny responsibility in his appellate filings.                                   By

putting the Government to its proof on this charge, Carranza

failed to accept responsibility for the grouped offense.                                    The

district court did not clearly err in its denial of a reduction

for acceptance of responsibility.

              Lastly,       Carranza       claims          that     his     sentence        was

unreasonable        because    it     was     substantially              longer    than     the

sentences      of     similarly-situated           defendants.              We     review     a

sentence      under     a   deferential       abuse          of   discretion       standard.

Gall v.    United      States,      552    U.S.    38,       51   (2007).          The    scant

information that we possess about the two defendants cited by

Carranza—his        brother,     Ebedo      Carranza-Aguirre               and    Livengood—

indicates that they are not similarly situated.                                 The district

court   found       Carranza     to   be    the     manager         of    the     conspiracy;

                                              7
Livengood, for one, was a customer.         Moreover, Carranza was the

only one of the three to go to trial.           Carranza has failed to

overcome the presumption of reasonableness that attaches to his

within-Guidelines sentence on appeal.

            We   therefore     affirm     Carranza’s    conviction      and

sentence.    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 in the decisional

process.

                                                                   AFFIRMED




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