United States v. Erasto Gomez-Jimenez

750 F.3d 370, 2014 WL 1623072
CourtCourt of Appeals for the Fourth Circuit
DecidedApril 24, 2014
Docket12-5030, 13-4059
StatusPublished
Cited by221 cases

This text of 750 F.3d 370 (United States v. Erasto Gomez-Jimenez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Erasto Gomez-Jimenez, 750 F.3d 370, 2014 WL 1623072 (4th Cir. 2014).

Opinions

Affirmed by published opinion. Judge AGEE wrote the opinion, in which Judge NIEMEYER joined. Judge GREGORY wrote a separate opinion concurring in part and dissenting in part.

AGEE, Circuit Judge:

Before the court are two related cases that we have consolidated. In one case, Erasto Gomez-Jimenez (“Erasto”) appeals the district court’s judgment sentencing him to 180 months’ imprisonment by challenging the application of several sentencing enhancements. In the other case, Aaron Juarez-Gomez (“Juarez-Gomez”) seeks review of two of the six counts of which he was convicted and also argues that the district court erred in the application of several sentencing enhancements in determining his sentence of 390 months’ imprisonment.

For the reasons set forth below, we affirm the judgment of the district court in each case.

I

Sergeant Todd Marshburn, an officer with the Raleigh, North Carolina Police Department, received a tip from an informant regarding a man selling cocaine in the Raleigh area. Upon Sgt. Marshburn’s request, the informant introduced another individual, the confidential informant (“Cl”), to the suspected drug dealer. The [374]*374Cl arranged to meet the suspect at a Burger King restaurant to purchase 14 grams of cocaine.

At the time of the arranged meeting, Juarez-Gomez arrived at the Burger King driving a yellow, four-door Chevrolet S-10 truck with a personalized, North Carolina license plate that read “GOMEZ.”1 The Cl purchased 13.7 grams of cocaine from Juarez-Gomez for $500 and took Juarez-Gomez’s phone number to arrange future meetings directly.

The next day, the Cl contacted Juarez-Gomez and asked to purchase another 14 grams of cocaine. Juarez-Gomez agreed to make another sale in the parking lot of a grocery store. Juarez-Gomez arrived at the parking lot in the same yellow truck and exchanged 14.1 grams of cocaine for $500 with the Cl. During this meeting, the Cl asked Juarez-Gomez if he was able to sell a solid piece of cocaine rather than powder cocaine. Juarez-Gomez indicated that he had only powder cocaine but provided the Cl with a small sample of crack cocaine. Following the drug transaction, Raleigh Police Detective Jeffrey Marbrey and other officers followed Juarez-Gomez, who eventually led them to a mobile home, where the officers observed the parked yellow truck adjacent to the trailer.

The following day, the Cl arranged to purchase 28 grams of cocaine from Juarez-Gomez. The Cl met Juarez-Gomez at a gas station, where Juarez-Gomez arrived in the same yellow truck. Juarez-Gomez exchanged 27.9 grams of cocaine for $900 with the Cl, who asked Juarez-Gomez to sell him greater quantities of cocaine, stating that he had “lots of money” and did not want to have to meet every day to purchase smaller amounts. Juarez-Gomez told the Cl that he would introduce him to his boss for that purpose.

Following the drug transaction, Detective Marbrey again followed Juarez-Gomez to the trailer and parked in a position that allowed observation of the road to the trailer. Detective Marbrey then made contact with the landlord of the trailer, and asked the landlord to call him when the yellow truck left the trailer.

The next day, the Cl again arranged to meet with Juarez-Gomez to purchase two ounces of cocaine for $2,000. About one hour before the meeting, the landlord called Detective Marbrey and informed him that the yellow truck had left the trailer. Juarez-Gomez arrived at the location of the drug sale in the same yellow truck, entered the Cl’s vehicle, and began speaking with the Cl. Upon the Cl’s signal, officers took both men into custody and seized two ounces of cocaine, one gram of crack, and an additional small amount of powder cocaine from the headliner of the yellow truck.

Following the arrest, police officers approached the mobile home and knocked on the door. A.G., a minor later revealed to be Juarez-Gomez’s son, answered the door and granted officers permission to enter the trailer. At that point, officers noticed another man in the trailer, Erasto Gomez-Jimenez. At the same time, Pedro Gomez-Jimenez (“Pedro”) fled the trailer into the surrounding woods, but was pursued and apprehended by police.

A.G. then consented to a search of the trailer for narcotics. Officers conducted a cursory search of the trailer for safety and observed, in plain view, digital scales, clear plastic bags, and a pistol. Officers then obtained a search warrant and conducted a [375]*375fall search of the trailer. Among other things, officers found over 700 grams of crack cocaine, a ledger of drug sales, pictures of Pedro posing with firearms, a small amount of marijuana, five kilograms of powder cocaine (some in brick form), several cell phones, several firearms, 1615 grams of liquid cocaine, and over $55,000 cash. Officers also found a rental receipt for the trailer in A.G.’s wallet and an electric bill for the trailer bearing Erasto’s name.

A cooperating witness (“CW”) provided officers additional information regarding the drug activities of Juarez-Gomez, Pedro, and Erasto. The CW stated that he engaged in a number of drug transactions with Pedro and Erasto together, and that A.G. attended several of these drug deals. The CW further stated that he met Pedro and A.G. at a storage facility where Pedro was extracting cocaine base from liquid cocaine with A.G.’s assistance.

Juarez-Gomez, Pedro, and Erasto were then named in a seven-count indictment filed in the Eastern District of North Carolina. Count One charged all three men with conspiracy to distribute and possess with intent to distribute 280 grams or more of cocaine base and five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) & 846. Counts Two through Five charged Juarez-Gomez with distribution of a quantity of cocaine on four separate dates in violation of 21 U.S.C. § 841(a)(1). Count Six charged all three men with possession with intent to distribute 280 grams or more of cocaine base and five kilograms or more of cocaine and aiding and abetting the same in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count Seven charged Juarez-Gomez with being an alien in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(5) & 924.

Without the benefit of a plea agreement, Pedro and Erasto pleaded guilty to Counts One and Six.2 Juarez-Gomez pleaded not guilty to all counts and proceeded to a trial by jury, where he was found guilty of Counts One through Six and not guilty of Count Seven.

The United States Probation Office prepared a presentence investigation report (“PSR”) for each defendant. In Erasto’s PSR, the probation officer concluded that he was accountable for 8,463.62 grams of cocaine and 732.15 grams of cocaine base, resulting in a base offense level of 34. The probation officer applied a two-level enhancement for possession of a firearm pursuant to section 2D1.1(b)(1) of the United States Sentencing Guidelines (the “Guidelines”).

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750 F.3d 370, 2014 WL 1623072, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-erasto-gomez-jimenez-ca4-2014.