USCA4 Appeal: 23-4196 Doc: 36 Filed: 09/16/2024 Pg: 1 of 16
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-4196
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICENTE ALEJO ANDRES, JR., a/k/a Vicente A. Andres, Jr., a/k/a Vicende Alejo Andres, Jr., a/k/a Vincente Alejo Andres, Jr., a/k/a Vicente Alejo Andreas, Jr., a/k/a Vicente Alejo Andres, a/k/a Vicende Alejo Andres, a/k/a Vincente Alejo Andres, a/k/a Vicente Alejo Andreas, a/k/a Vic,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Roderick Charles Young, District Judge. (2:21-cr-00074-RCY-RJK-1)
Submitted: April 25, 2024 Decided: September 16, 2024
Before RUSHING and BENJAMIN, Circuit Judges, and KEENAN, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: John E. Davidson, DAVIDSON & KITZMAN, PLC, Charlottesville, Virginia, for Appellant. Jessica D. Aber, United States Attorney, Kevin M. Comstock, Matthew J. Heck, Jacqueline R. Bechara, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-4196 Doc: 36 Filed: 09/16/2024 Pg: 2 of 16
PER CURIAM:
Vicente Alejo Andres, Jr., appeals his conviction and 420-month sentence entered
pursuant to the district court’s verdict finding him guilty of various drug and firearm
offenses after a bench trial. On appeal, he raises the claims outlined below. We affirm.
I.
Andres was indicted for the following crimes: (1) methamphetamine and marijuana
conspiracy from 2018 until April 21, 2021 (Count One), in violation of 21 U.S.C. § 846;
(2) maintaining a place for the purpose of manufacturing, distributing, and using a
controlled substance from 2019 until April 21, 2021 (Count Two), in violation of 21 U.S.C.
§ 856(a)(1); (3) possession with intent to distribute 50 grams or more of methamphetamine
on April 21, 2021 (Count Three), in violation of 21 U.S.C. § 841; (4) possession with intent
to distribute marijuana (Count Four), in violation of 21 U.S.C. § 841; (5) possession of a
firearm in furtherance of a drug trafficking crime, that is Counts One through Four (Count
Five), in violation of 18 U.S.C. § 924(c); and (6) possession of a firearm by a convicted
felon (Count Six), in violation of 18 U.S.C. § 922(g). The evidence at trial established the
following facts.
Sometime in 2018 or 2019, Robin West and Andres moved into a house on
Danwood Drive in Norfolk, Virginia. Since approximately 2013, Andres and West had
been in a romantic relationship. Andres supplied West, her daughter (Sarah Davis), her
daughter’s boyfriend (Chris Fant), and numerous others with methamphetamine, some of
whom further distributed the methamphetamine. Fant once saw Andres with 20 pounds of
methamphetamine at the Danwood Drive house.
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Andres had a “puzzle box” in the home that only he knew how to open, and he stored
marijuana and methamphetamine in it. Andres also kept firearms in the home. While
living at the Danwood Drive house, Andres and West made three or four trips to California
to pick up methamphetamine.
Beginning in late 2020, Margaret Ann Sutton visited the Danwood Drive house
about three to four times per week to get methamphetamine from Andres and redistribute
it. In March 2021, Andres and West’s relationship ended, and West moved out of the
Danwood Drive house. In April 2021, Andres and Sutton started a relationship. That same
month, Andres, Sutton, and two others traveled to California, where Andres bought
methamphetamine and marijuana.
In January 2021, Katherine Moore was released from prison and began selling
methamphetamine for Andres. In March 2021, Moore’s friend gave her the phone number
of a person known as “Ray” and told her Ray was looking for methamphetamine. “Ray”
turned out to be James Luttrell, an undercover investigator with the Norfolk Police
Department. On March 17, 2021, Luttrell purchased methamphetamine from Moore that
she stated came from Andres. On March 23, 2021, Luttrell drove Moore to the Danwood
Drive house, where Andres gave Moore one ounce of methamphetamine to sell to Luttrell,
which she did.
In April 2021, Special Agent Jack Faddis, acting undercover, contacted Moore
about buying methamphetamine. Moore communicated with Sutton about the transaction,
and Sutton stated that she was at the Danwood Drive house. Sutton supplied the
methamphetamine for this transaction because Andres was sleeping. On April 21, 2021,
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Faddis picked Moore up and drove her to Danwood Drive, where Sutton retrieved the
methamphetamine and weighed out four ounces. After Sutton gave her the
methamphetamine, Moore returned to Faddis’s car and sold him three ounces of
methamphetamine. She kept one ounce for herself. Moore then returned to the house and
gave Sutton the money from Faddis.
A few hours after the third controlled buy, officers executed a search warrant on the
Danwood Drive house. Andres and Sutton, the only people present, were detained.
Officers found $2,400 of the buy money on Sutton’s person and $3,500 in cash on Andres’
person. Officers found three guns in the house. In the master bedroom, there was a gun
box that housed a .45 Hi-Point caliber handgun and approximately 42 rounds of
ammunition. Also in the master bedroom, on top of the dresser, officers found a loaded,
.9mm Taurus handgun. In the living room, officers found an AR-15 on top of a desk.
Officers also found drugs and drug paraphernalia in the house. In the master bedroom,
police found two packages of methamphetamine inside a laundry basket. They also found
plastic baggies commonly used to divide up illegal narcotics in the master bedroom. Near
the bathroom, officers found the puzzle box, which contained marijuana. Officers also
recovered multiple digital scales from the house.
Andres waived his right to a jury trial and proceeded to a bench trial in August 2022.
In addition to the testimony summarized above, the Government introduced the testimony
of several experts. Faddis testified as an expert in narcotics trafficking and explained the
relationship between firearms and illegal narcotics. He stated that drug dealers need
firearms to protect themselves and their drugs and money from rival drug dealers and
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robbers. In addition, Faddis asserted that it is common for drug dealers to possess firearms
near where the drugs are stored so that the firearms are readily accessible.
The Government also called three forensic chemists employed by the Drug
Enforcement Administration (“DEA”). Brian Makela analyzed the substance seized during
the second controlled buy. Makela performed three tests to identify the substance: gas
chromatography-mass spectrometry, infrared spectroscopy, and a quantitative test to
determine purity. He concluded that the substance contained methamphetamine
hydrochloride. Makela also analyzed the substance seized from the puzzle box and
determined it was marijuana.
When the Government moved to admit Makela’s chemical analysis report of the
methamphetamine into evidence, Andres’ counsel objected. On cross-examination,
Makela indicated that the tests he performed were used to identify the compound and its
unique structure, but the tests did not determine the molecular weight of the substance. He
explained that his identifications were made by comparing the data received on the samples
to known reference standards. On redirect, Makela described the gas
chromatography-mass spectrometry and infrared spectroscopy tests.
Andres’ counsel then asked to follow up on the redirect testimony. The court
responded, “Well, you don’t get recross. It’s direct, cross, and redirect.” (J.A. 416). Andres
maintained his objection to Makela’s report. He argued that Makela had “tested something
that we don’t really know the chemical structure of, or the molecular structure and
compounds of against something, and those two things might be the same thing, but
without the base information, we have to take it on faith that they’re right about what it is.”
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(J.A. 417). The court overruled the objection, reasoning that Makela had “explained the
test that [he] performed for this substance which is the same test that’s normally performed
that’s been accepted, and has explained the method of how they’re able to identify in this
particular instance that the substance tested was methamphetamine.” (J.A. 419).
Jeffrey Lamb analyzed the substances recovered from the laundry basket in the
master bedroom of the Danwood Drive house, as well as the substance seized during the
third controlled buy. He concluded that the substances were methamphetamine
hydrochloride. To reach his conclusions, Lamb performed a gas chromatography-mass
spectrometry test, an infrared spectrometry test, and a Marquis color test. The court
admitted Lamb’s chemical analysis reports into evidence over Andres’ objections.
Lora Lopez analyzed the substance seized during the first controlled buy and
concluded that the substance contained methamphetamine hydrochloride. She conducted
a gas chromatography-mass spectrometry test and an infrared spectrometry test. Over
Andres’ objections, the court admitted Lopez’s chemical analysis report into evidence.
The court found Andres guilty of all charged counts. At his sentencing, Andres
argued that the Sentencing Guidelines created an unwarranted disparity by punishing Ice
methamphetamine more harshly than mixtures of methamphetamine. Because the
Government had proven that the offenses involved actual, not Ice, methamphetamine, the
court directed the probation officer to revise the presentence report accordingly. However,
that revision did not change the Guidelines range.
Based on a total offense level of 44 and a criminal history category of III, Andres’
advisory Guideline range was life imprisonment, plus a consecutive 60 months’
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imprisonment on Count 5. The Government recommended a sentence of life plus 60
months’ imprisonment, and Andres requested a sentence of 240 months’ imprisonment.
After considering the relevant factors under 18 U.S.C. § 3553(a), the court sentenced
Andres to a total of 420 months’ imprisonment.
II.
Andres first challenges the sufficiency of the evidence to convict him on the
§ 924(c) count. We are obliged to sustain a guilty verdict if, viewing the evidence in the
light most favorable to the Government, the verdict is supported by substantial evidence.
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc) (citing Glasser v.
United States, 315 U.S. 60, 80 (1942)). We have defined “substantial evidence” as
“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.” Burgos, 94 F.3d at 862.
This court “consider[s] circumstantial as well as direct evidence, [] allow[s] the
government the benefit of all reasonable inferences from the facts proven to those sought
to be established,” United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982), and
assumes that the fact finder resolved all contradictions in the testimony in favor of the
Government. United States v. Brooks, 524 F.3d 549, 563 (4th Cir. 2008). We “can reverse
a conviction on insufficiency grounds only when the prosecution’s failure is clear.” United
States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en banc) (internal quotation marks and
citation omitted).
“In order to prove the § 924(c) violation, the government was required to present
evidence indicating that the possession of a firearm furthered, advanced, or helped forward
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a drug trafficking crime. However, whether the firearm served such a purpose is ultimately
a factual question.” United States v. Perry, 560 F.3d 246, 254 (4th Cir. 2009) (internal
quotation marks and citation omitted). The factors to be considered include the type of
drug activity being conducted, the accessibility of the firearm, the type of weapon, whether
the weapon is stolen, whether the possession of the weapon is legal or illegal, whether the
gun is loaded, proximity to drugs and drug profits, and the time and circumstances under
which the gun was found. Id. “Finding drugs and firearms in a residence used to sell drugs
supports a finding that the firearms were being used in furtherance of a drug trafficking
crime.” United States v. Hardy, 999 F.3d 250, 257 (4th Cir. 2021).
Andres contends that the Government failed to prove that his possession of the
firearms was in furtherance of drug trafficking. We disagree. Two of the firearms were
found in the master bedroom, in close proximity to methamphetamine and plastic baggies.
One of those firearms was loaded, readily accessible, and sitting on top of a dresser. The
AR-15 was in plain sight in the same room where Sutton had weighed methamphetamine
for the controlled buy just hours before. Andres was involved in the distribution of large
quantities of methamphetamine worth a substantial amount of money. Moreover, he was
a convicted felon, and thus, his possession of a firearm was unlawful. In addition, the
AR-15 was stolen, and the .45 Hi-Point was registered to one of Andres’ drug customers.
Finally, Faddis testified that drug dealers need guns to protect themselves, their product,
and their money from rival drug dealers or robbers and that drug traffickers generally keep
their firearms near their drugs so that the firearms will be accessible. This evidence was
sufficient to support Andres’ conviction.
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III.
Andres asserts that the trial court erred by failing to permit him to recross-examine
Makela. Absent the introduction of any new matter on re-direct examination, the rule is
that recross-examination is not required. United States v. Fleschner, 98 F.3d 155, 158 (4th
Cir. 1996) (stating that re-direct testimony regarding test results did not cover a new subject
when witness testified to taking the test on cross-examination). A district court’s restriction
of cross-examination is reviewed for abuse of discretion. United States v. Scheetz, 293
F.3d 175, 184 (4th Cir. 2002). Moreover, even if the district court’s ruling was an abuse
of discretion, we review for harmless error. See United States v. Smith, 451 F.3d 209, 222
(4th Cir. 2006).
On appeal, Andres asserts that the district court erred by refusing to allow him to
recross Makela “about a new topic the Government had opened in redirect.” (Appellant’s
Br. (ECF No. 24) at 11). However, Andres does not state what that new topic was or
provide any case-specific analysis. In his reply brief, Andres untimely contends that the
new information was the description of the conduct of the various tests. See Grayson O
Co. v. Agadir Int’l, 856 F.3d 307, 316 (4th Cir. 2017) (“A party waives an argument by
failing to present it in its opening brief or by failing to develop its argument—even if its
brief takes a passing shot at the issue.”) (cleaned up). Counsel asserts that, on
recross-examination, he would have “probe[d] for gaps in knowledge, mistakes in
procedure, uncertainty of memory, and so on.” (Reply Br. (ECF No. 39) at 6). However,
Andres still does not provide any specific area of concern to be explored in this “new”
information.
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Makela identified the tests he conducted on direct examination, and counsel was
free to cross-examine on the details of these tests and did so to some degree. Counsel was
also free to cross-examine on gaps in knowledge, mistakes in procedure, and uncertainty
of memory, but generally did not do so. Testimony is not a “new matter” if it merely
“expands or elaborates on the witness’ previous testimony.” United States v. Blakenship,
846 F.3d 663, 669 (4th Cir. 2017) (cleaned up). Given that Andres has waived the
identification of the new matter by not specifying it in his opening brief and given that, in
any event, one could reasonably conclude that the matter Andres’ identifies in his reply
brief was not new, Andres has not shown an abuse of discretion. See Evans v. Eaton Corp.
Long Term Disability Plan, 514 F.3d 315, 322 (4th Cir. 2008) (“At its immovable core, the
abuse of discretion standard requires a reviewing court to show enough deference to a
primary decision-maker’s judgment that the court does not reverse merely because it would
have come to a different result in the first instance.”).
IV.
Next, Andres contends that there was insufficient proof that the substance at issue
was methamphetamine, given that the testifying experts did not test for the molecular
structure. However, Andres does not provide legal support for the contention that
molecular or other additional testing was required. In fact, we have determined that “lay
testimony and circumstantial evidence may be sufficient, without the introduction of an
expert chemical analysis, to establish the identi[t]y of the substance involved in an alleged
narcotics transaction.” United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976) (noting
that such evidence could include the physical appearance of the substance, evidence that
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the substance produced the expected results, the price paid for the substance, and evidence
of secretive transactions); see also United States v. Tinsley, 800 F.2d 448, 450 (4th Cir.
1986) (affirming admission of lay testimony that substance sold by defendant was
methamphetamine).
Here, numerous witnesses testified that Andres had given or sold them
methamphetamine. In addition, two witnesses specifically testified that the substance
Andres gave them produced the effects that they expected from methamphetamine. 1 See
United States v. Scott, 725 F.2d 43, 46 (4th Cir. 1984) (sufficient evidence established that
the substance was cocaine where “all persons dealing with the substance treated and dealt
with it as cocaine”). Further, three experts testified that, after conducting the appropriate
tests, they determined that the substance at issue was methamphetamine. Finally, we have
recognized the appropriateness of the experts’ tests. See United States v. Abbas, 74 F.3d
506, 512-13 (4th Cir. 1996) (accepting expert testimony that gas chromatography, infrared
spectroscopy, and mass spectroscopy tests “are generally accepted standards” and rejecting
hearsay challenge because expert opinions usually rely on information gathered out of
1 Andres attacks the credibility of the witnesses who were drug users and convicted felons. However, it is the role of the district court to observe witnesses and weigh their credibility. United States v. Palmer, 820 F.3d 640, 653 (4th Cir. 2016). Moreover, as discussed above, when considering the sufficiency of the evidence, we assume all contradictions were resolved in favor of the Government.
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court). As such, there was more than sufficient evidence to prove that the substance at
issue was methamphetamine. 2
Congress initially categorized methamphetamine as a Schedule III substance. 21
U.S.C. § 812. Congress also delegated authority to the Attorney General to transfer a
particular drug to a more serious schedule if he/she should find that the “substance has a
potential for abuse” and makes the appropriate findings. 21 U.S.C. § 811(a). In 1971, the
Director of the Bureau of Narcotics and Dangerous Drugs (“BNDD”) transferred
methamphetamine from Schedule III to Schedule II, based on its “high potential for abuse.”
36 Fed. Reg. 12734, 12735 (July 7, 1971). In 1974, the Director of the Drug Enforcement
Agency (“DEA”) republished the classification of methamphetamine as a Schedule II drug.
39 Fed. Reg. 22140, 22142 (June 20, 1974). Andres argues that Congress lacked the power
to delegate this authority and that, even if the delegation was appropriate, the Attorney
General did not properly exercise such authority by further delegating it and by failing to
make the necessary findings.
Andres concedes that this argument is subject to plain error review. To establish
plain error, Andres “must show that an error (1) was made, (2) is plain . . ., and (3) affects
substantial rights.” United States v. Miller, 41 F.4th 302, 310 (4th Cir. 2022). Even if he
“makes this three-part showing,” this court “may exercise its discretion to correct the error
2 While Andres could have presented his own evidence that, absent specific molecular testing, the identification of a substance is suspect, he did not.
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only if it seriously affects the fairness, integrity[,] or public reputation of judicial
proceedings.” Id. at 311.
Andres does not cite to any case law supporting his contentions. Moreover, the
courts that have addressed the issues have disagreed with him. See, e.g., United States v.
Allison, 953 F.2d 870, 874 (5th Cir. 1992) (finding Attorney General’s delegation to BNDD
were proper); United States v. Roark, 924 F.2d 1426, 1428-29 (8th Cir. 1991) (holding that
BNDD and DEA made the findings necessary to reschedule methamphetamine); United
States v. Touby, 909 F.2d 759, 766 (3d Cir. 1990) (finding Attorney General has power to
schedule drugs and citing cases); United States v. Barron, 594 F.2d 1345, 1352–53 (10th
Cir. 1979) (finding § 811 to be a constitutional delegation of authority by Congress). As
such, Andres has failed to show error, much less plain error.
VI.
Andres asserts that, given his age, 3 his sentence is tantamount to a life sentence. He
contends that, under the circumstances of his case, a life sentence violates the Eighth
Amendment. The Eighth Amendment prohibits cruel and unusual punishments, a standard
that encompasses both inherently barbaric punishments as well as those that are
disproportionate to the crime committed. Graham v. Florida, 560 U.S. 48, 59 (2010). In
determining whether a sentence is disproportionate to the offense, and thus cruel and
unusual, courts are to consider objective criteria, including the gravity of the offense and
harshness of the penalty, the sentences imposed on other criminals in the same jurisdiction,
3 Andres was born in 1961.
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and the sentences imposed for the same offense in other jurisdictions. United States v.
Dowell, 771 F.3d 162, 167 (4th Cir. 2014). Of the challenges charging that a particular
sentence is disproportionate to the crime committed, there are two types: an as-applied
challenge that the length of a sentence is disproportionate given the circumstances of the
case, and a categorical challenge asserting that an entire class of sentences is
disproportionate based on the nature of the offense or the characteristics of the offender.
Id.
In this case, where a party has asserted an as-applied challenge to a particular
sentence, we have outlined a specific method of analysis:
[T]he narrow proportionality principle of the Eighth Amendment does not require strict proportionality between crime and sentence, but forbids only extreme sentences that are grossly disproportionate to the crime. Before an appellate court concludes that a sentence is grossly disproportionate based on an as-applied challenge, the court first must determine that a threshold comparison of the gravity of the offense and the severity of the sentence leads to an inference of gross disproportionality.
United States v. Cobler, 748 F.3d 570, 575 (4th Cir. 2014) (internal quotation marks and
citations omitted); see also United States v. Ross, 72 F.4th 40, 52 (4th Cir. 2023) (finding
functional life sentence for child pornography offenses not grossly disproportionate and
noting the rarity of cases finding gross disproportionality).
We have previously held that a mandatory sentence of life without parole for drug
distribution is not a grossly disproportionate sentence. United States v. Kratsas, 45 F.3d
63, 68 (4th Cir. 1995). In so doing, we emphasized that the defendant’s conduct was
“immensely grave,” noting that the defendant was “part of a ring of distributors,” directly
responsible for “a large amount of cocaine, specifically 18 kilograms,” and a repeat drug
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offender. Id. Andres received a lighter sentence than the one imposed in Kratsas, but he
too was a distributor of a large amount of illegal substances and a repeat offender.
Consequently, his Eighth Amendment claim fails.
VII.
Andres asserts that his sentence was procedurally unreasonable because the
difference in Guidelines calculations for methamphetamine (actual) as opposed to a
methamphetamine mixture creates unreasonable sentencing disparities. We have already
held that a district court does not abuse its discretion in declining to reject the Ice
Guidelines for policy reasons. See United States v. Williams, 19 F.4th 374, 378 (4th Cir.
2021). In any event, even if Andres’ Guidelines range had been calculated based upon a
methamphetamine mixture, his Guidelines range would not have changed. Accordingly,
we find that Andres’ sentence was procedurally reasonable.
Finally, Andres asserts that his sentence is substantively unreasonable, arguing that,
given his age, health, and offense conduct, the functional life sentence is too lengthy. “A
sentence is substantively unreasonable only where under the totality of the circumstances,
the sentencing court abused its discretion in concluding that the sentence it chose satisfied
the standards set forth in § 3553(a).” United States v. Devine, 40 F.4th 139, 153 (4th Cir.
2022) (internal quotation marks omitted), cert. denied, 143 S. Ct. 790 (2023). The district
court must “ensure that the sentence caters to the individual circumstances of a defendant.”
United States v. Howard, 773 F.3d 519, 531 (4th Cir. 2014) (internal quotation marks
omitted). However, “district courts have extremely broad discretion when determining the
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weight to be given each of the § 3553(a) factors.” United States v. Jeffrey, 631 F.3d 669,
679 (4th Cir. 2011).
We presume that a below-Guidelines sentence is substantively reasonable. United
States v. Zelaya, 908 F.3d 920, 930 (4th Cir. 2018). Andres can rebut that presumption
only “by showing that the sentence is unreasonable when measured against the 18 U.S.C.
§ 3553(a) factors.” United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
While Andres asserts that a more significant downward variance was needed in this
case, we find that Andres’ arguments are unpersuasive. Andres was an organizer or a
leader of a large methamphetamine conspiracy. He dealt in large quantities of drugs and
possessed numerous firearms. Despite his prior convictions, Andres was not deterred from
his offense conduct, which reflected his lack of respect for the law. The court noted that
Andres had numerous convictions dating back decades for which he received zero criminal
history points. The court considered Andres’ personal circumstances and granted him a
downward variance based on his age, health conditions, and the fact that he chose a bench
trial. Andres’ arguments fail to rebut the presumption that his sentence is substantively
reasonable.
Based on the foregoing, we affirm Andres’ convictions and sentence. 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