UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4873

OLIVERIA ESPINOZA SANCHEZ,

Defendant-Appellant. 

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

William L. Osteen, District Judge.

(CR-02-146)

Submitted: May 20, 2003

Decided: June 12, 2003

Before WIDENER, TRAXLER, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Paul M. James, III, STOWERS & JAMES, P.A., Winston-Salem,

North Carolina, for Appellant. Anna Mills Wagoner, United States

Attorney, Michael A. DeFranco, Assistant United States Attorney,

Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Oliveria Espinoza Sanchez pled guilty to possession of a firearm

by an illegal alien in violation of 18 U.S.C. § 922(g)(5) (2000), and

received a sentence of forty-eight months imprisonment. Sanchez

appeals her sentence, alleging that the district court erred in considering evidence relating to dismissed counts that was proved by a preponderance of the evidence, and clearly erred in finding that she

possessed the firearm in connection with drug trafficking. We affirm.

On April 5, 2002, Miguel Cortez Jaimes, Sanchez’s husband,

agreed to deliver a kilogram of cocaine to a federal undercover agent

posing as a customer of Sanchez’s brother, Manuel Espinoza Sanchez. The agent also promised to bring with him $40,000 owed to

Manuel. The same day, Sanchez, her husband, and their small child

drove from their home in Dobson, North Carolina, to Winston-Salem

to meet the agent in the parking lot of a mall. Miguel spoke with the

agent several times on his cell phone before he parked their van at the

mall. Miguel was arrested shortly afterward, a little distance from the

van, with his young son. As Miguel was detained, an agent

approached the van with his gun drawn. He opened the passenger side

door and in Spanish told Sanchez, who was in the front passenger

seat, to put her hands up. Sanchez put her right hand up, but dropped

her left hand, drawing the agent’s attention to a brick-shaped object

wrapped in opaque plastic that was partially concealed beneath her

left thigh. The agent then pulled Sanchez out of the van. As he did

so, the brick fell to the floor of the car. It proved to be 977 grams of

cocaine. Sanchez’s purse was found on the floor of the van between

the driver’s and passenger’s seats; it contained a loaded Ruger .40 caliber pistol. 

Sanchez was charged with conspiracy to distribute cocaine, possession of 977 grams of cocaine with intent to distribute, carrying a firearm during and in relation to a drug trafficking crime, and possession

of a firearm by an illegal alien. She pled guilty to the last count only,

but was held accountable for sentencing purposes for the drug offense

through the operation of the cross reference in U.S. Sentencing Guidelines Manual § 2K2.1(c)(1)(A) (2001). The cross reference provides

2 UNITED STATES v. SANCHEZ
that, if the defendant used or possessed a firearm in connection with

the commission or attempted commission of another offense, USSG

§ 2X1.1 should be applied with respect to the other offense if the

resulting offense level is greater than that achieved under § 2K2.1.

Section 2X1.1 provides for use of the base offense level for the substantive offense (in this case, USSG § 2D1.1), and any applicable

adjustments. The district court overruled Sanchez’s objection to application of the cross-reference, but reduced her offense level after finding that she had a minor role in the conspiracy. 

On appeal, Sanchez contends first that the district court erred in

determining her sentence based on evidence relating to the dismissed

counts. She argues that an enhancement based on conduct from dismissed charges, which is proved only by a preponderance of the evidence at sentencing, results in a violation of due process according to

the principles set out in Ring v. Arizona, 536 U.S. 584 (2002),

Apprendi v. New Jersey, 530 U.S. 466 (2000), and Jones v. United

States, 526 U.S. 227 (1999), even though the enhancement did not

increase the statutory maximum penalty for her offense of conviction.

Sanchez concedes that her position is not supported by the law of this

Circuit. See, e.g., United States v. Kinter, 235 F.3d 192, 201 (4th Cir.

2000). We conclude that the issue she has raised is meritless. 

Second, Sanchez contests the district court’s factual finding that

she possessed the pistol seized from her purse in connection with drug

trafficking. She maintains that the only evidence that arguably connected her to the cocaine was the fact that it was under or against her

leg when the agent accosted her and that she moved her left hand in

its direction when ordered to put her hands up. She argues that this

evidence is insufficient because the cocaine was wrapped in opaque

plastic and not clearly discernable through the packaging. We review

the district court’s factual determination for clear error. United States

v. Hudson, 272 F.3d 260, 263 (4th Cir. 2001). 

We conclude that the district court did not clearly err in finding that

Sanchez was aware of the cocaine transaction in progress, given that

her husband was conducting it on behalf of her brother, that she

accompanied her husband, that her husband spoke with the undercover agent several times on his cell phone in her presence, and that

he finally left her in the van with the cocaine and a loaded gun. These

UNITED STATES v. SANCHEZ 3
circumstances permitted the court to infer that Sanchez was protecting

the cocaine until the transaction was completed. Her husband’s assertions to the contrary at the sentencing hearing were rejected as not

credible by the district court. Findings based on the credibility of witnesses are given great deference. United States v. Hassanzadeh, 271

F.3d 574, 580 (4th Cir. 2001). 

We therefore affirm the sentence imposed by the district court. 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 the decisional process.

AFFIRMED

4 UNITED STATES v. SANCHEZ