United States v. Mustapha Zico

553 F. App'x 318
CourtCourt of Appeals for the Fourth Circuit
DecidedJanuary 29, 2014
Docket13-4408
StatusUnpublished

This text of 553 F. App'x 318 (United States v. Mustapha Zico) 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. Mustapha Zico, 553 F. App'x 318 (4th Cir. 2014).

Opinion

*319 Affirmed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Mustapha Issaka Zico appeals the district court’s judgment imposing a sentence of 216 months in prison after the jury convicted him of conspiracy to import one kilogram or more of heroin in violation of 21 U.S.C. §§ 960(b)(1)(A), 963 (2012), and distribution for the purpose of unlawful importation of one kilogram or more of heroin in violation of 18 U.S.C. § 2 (2012), 21 U.S.C. §§ 959(a), 960(b)(1)(A) (2012). On appeal, Zico raises the issues of whether the evidence was sufficient to convict him and whether his sentence was improper. We affirm.

A defendant challenging the sufficiency of the evidence faces a heavy burden. United States v. Cone, 714 F.3d 197, 212 (4th Cir.2013) (citation and quotations omitted). We must uphold a jury verdict if there is substantial evidence, viewed in the light most favorable to the Government, to support it. United States v. Al Sabahi 719 F.3d 305, 311 (4th Cir.2013) (citation and quotations 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.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir.1996) (en banc).

Zico argues that the evidence was insufficient because it “came solely from the testimony of unreliable drug dealers and drug couriers,” and “a conviction based entirely on such biased testimony should not stand.” (Appellant’s br. at 13). However, the jury has already assessed the credibility of the witnesses, and we cannot do so on appeal. See United States v. Cabrera-Beltran, 660 F.3d 742, 754 (4th Cir.2011) (citation omitted); see also Perry v. New Hampshire, — U.S. -, 132 S.Ct. 716, 723, 181 L.Ed.2d 694 (2012) (“[Jjuries are assigned the task of determining the reliability of the evidence presented at trial.”). Moreover, “[t]he settled law of this circuit recognizes that the testimony of a defendant’s accomplices, standing alone and uncorroborated, can provide an adequate basis for conviction.” United States v. Burns, 990 F.2d 1426, 1439 (4th Cir.1993) (citation omitted). Deferring to the jury’s credibility determinations, we conclude that substantial evidence supports the jury’s verdict.

We review a criminal sentence for reasonableness using an abuse of discretion standard. United States v. McManus, 734 F.3d 315, 317 (4th Cir.2013) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). First, we consider whether the district court committed a significant procedural error, such as improperly calculating the Guidelines range or inadequately explaining the sentence. United States v. Allmendinger, 706 F.3d 330, 340 (4th Cir.), cert. denied, — U.S. -, 133 S.Ct. 2747, 186 L.Ed.2d 194 (2013). If the sentence is procedurally reasonable, we then consider its substantive reasonableness, taking into account the totality of the circumstances. Gall, 552 U.S. at 51, 128 S.Ct. 586. We presume that a sentence within or below a properly calculated Guidelines range is substantively reasonable. United States v. Susi, 674 F.3d 278, 289 (4th Cir.2012).

In sentencing, the district court must first correctly calculate the defendant’s sentencing range under the Sentencing Guidelines. Allmendinger, 706 F.3d at 340. The district court is next required to give the parties an opportunity to argue for what they believe to be an appropriate sentence, and the court must consider *320 those arguments in light of the factors set forth in 18 U.S.C. § 3553(a) (2012). Id.

When rendering a sentence, the district court must make and place on the record an individualized assessment based on the particular facts of the case. United States v. Carter, 564 F.3d 325, 330 (4th Cir.2009). In explaining the sentence, the “sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decision-making authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). While a court must consider the statutory factors and explain its sentence, it need not explicitly reference § 3553(a) or discuss every factor on the record. United States v. Johnson, 445 F.3d 339, 345 (4th Cir.2006).

Zico first contends that the district court erred in applying a three-level enhancement for his role as a manager or supervisor in the offense pursuant to U.S. Sentencing Guidelines Manual § 3Bl.l(b) (2012). We review this issue for clear error. Cabrera-Beltran, 660 F.3d at 756. The adjustment applies “[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive.” U.S.S.G. § 3Bl.l(b). The Guidelines list seven factors to be considered in making the determination. See U.S.S.G. § 3B1.1 cmt. n.4; United States v. Otuya, 720 F.3d 183, 192 (4th Cir.2013) (applying some of these factors in assessing propriety of three-level enhancement).

“[T]he aggravating role adjustment is appropriate where the evidence demonstrates that the defendant controlled the activities of other participants or exercised management responsibility.” United States v. Llamas, 599 F.3d 381, 390 (4th Cir.2010) (citation and internal quotations omitted); see also United States v. Slade,

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Related

United States v. Llamas
599 F.3d 381 (Fourth Circuit, 2010)
Rita v. United States
551 U.S. 338 (Supreme Court, 2007)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Slade
631 F.3d 185 (Fourth Circuit, 2011)
United States v. Cabrera-Beltran
660 F.3d 742 (Fourth Circuit, 2011)
United States v. Susi
674 F.3d 278 (Fourth Circuit, 2012)
United States v. Artez Lamont Johnson
445 F.3d 339 (Fourth Circuit, 2006)
United States v. Christian Allmendinger
706 F.3d 330 (Fourth Circuit, 2013)
United States v. Donald Cone
714 F.3d 197 (Fourth Circuit, 2013)
United States v. Abduladhim Al Sabahi
719 F.3d 305 (Fourth Circuit, 2013)
United States v. Okechukwo Otuya
720 F.3d 183 (Fourth Circuit, 2013)
United States v. Carter
564 F.3d 325 (Fourth Circuit, 2009)
United States v. William McManus
734 F.3d 315 (Fourth Circuit, 2013)
Perry v. New Hampshire
181 L. Ed. 2d 694 (Supreme Court, 2012)

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Bluebook (online)
553 F. App'x 318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mustapha-zico-ca4-2014.