FILED: September 13, 2013

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

________________

No. 11-5167

________________

UNITED STATES OF AMERICA,

 Plaintiff – Appellee,

v.

GENARO FLORES-DURAN, a/k/a Genaro Flores, a/k/a Carlos 

Perez-Diaz, a/k/a Carlos Perez,

 Defendant – Appellant.

O R D E R

The Court amends its opinion filed July 1, 2013, as 

follows:

On the cover sheet, attorney information section – in 

the "ARGUED" section, the name "Kristine L. Fritz" is 

substituted for the name "Jennifer P. May-Parker." In the "ON 

BRIEF" section, the name "Jennifer P. May-Parker" is substituted 

for the name "Kristine L. Fritz."

For the Court – By Direction

/s/ Patricia S. Connor

 Clerk
2

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-5167

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GENARO FLORES-DURAN, a/k/a Genaro Flores, a/k/a Carlos 

Perez-Diaz, a/k/a Carlos Perez,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Wilmington. Louise W. Flanagan, 

District Judge. (7:10-cr-00095-FL-1)

Argued: May 14, 2013 Decided: July 1, 2013

Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Geoffrey Wuensch Hosford, HOSFORD & HOSFORD, P.C., 

Wilmington, North Carolina, for Appellant. Kristine L. Fritz, 

OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, 

for Appellee. ON BRIEF: Thomas G. Walker, United States 

Attorney, Jennifer P. May-Parker, Assistant United States 

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

Appellant Genaro Flores-Duran and co-defendants Salvador 

Flores-Duran (Salvador), Jorge Albarran-Rivera (Jorge), and 

Zacharias Espinoza were charged in a two-count superseding 

indictment with conspiracy to distribute and possess with intent 

to distribute five kilograms or more of cocaine, in violation of 

21 U.S.C. § 846 (Count One), and aiding and abetting each other 

in the possession of firearms in furtherance of a drug 

trafficking offense, in violation of 18 U.S.C. §§ 924(c) and 2 

(Count Two). A jury convicted Flores-Duran of both counts. The 

district court subsequently sentenced him to 292 months’ 

imprisonment on Count One and sixty months’ imprisonment, to run 

consecutively, on Count Two, for a total of 352 months’ 

imprisonment. Thereafter, Flores-Duran filed a timely notice of 

appeal in which he raises various arguments as to why we ought 

to grant him a new trial or, in the alternative, a new 

sentencing hearing. We have jurisdiction over this appeal 

pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. 

Discerning no reversible error, we affirm.

I.

We set forth a brief overview of the facts of this case 

here. We provide more detailed facts, as relevant to the 

appellate issues, below.
4

In 2009, federal and state law enforcement agencies from 

South Carolina and North Carolina discovered a group of Mexican 

nationals involved in a drug trafficking conspiracy dealing in 

large quantities of cocaine in both South Carolina and North 

Carolina. The multi-year conspiracy lasted until August 11, 

2010. 

The investigation established that Flores-Duran and his 

brother, Salvador, were the leaders of the conspiracy. Other 

participants included, but were not limited to, Jorge, Espinoza, 

Luis Cesar-Rosas, Esteban Rivera, and Concepcion VillegasFlores. 

On August 11, 2010, Deputy Jonah Jenkins of the Jasper 

County Sheriff’s Department stopped Flores-Duran for following 

another vehicle too closely, in violation of South Carolina 

Code Section 56-5-1930(a). Flores-Duran consented to a search 

of his vehicle. During the search, Jenkins found a white 

powder, which, after a field test, showed evidence of cocaine. 

Moreover, Jenkins’s K-9 partner alerted on some bags in the 

trunk of Flores-Duran’s car. Thereafter, Jenkins arrested 

Flores-Duran.

The grand jury returned a superseding indictment against 

Flores-Duran, Salvador, Jorge, and Espinoza on March 10, 2011, 

charging them with conspiracy to distribute and possess with 

intent to distribute five kilograms or more of cocaine, in 

violation of 21 U.S.C. § 846 (Count One), and possession of 
5

firearms in furtherance of a drug trafficking offense and aiding 

and abetting, in violation of 18 U.S.C. §§ 924(c) and 2 (Count 

Two). 

At trial, the jury convicted Flores-Duran of both counts. 

The district court subsequently sentenced him to 292 months’ 

imprisonment on Count One and sixty months’ imprisonment, to run 

consecutively, on Count Two, for a total of 352 months’ 

imprisonment. This appeal followed. 

II.

First, Flores-Duran contends that the district court abused 

its discretion by failing to dismiss the charges against him on 

account of the government’s violation of the magistrate judge’s 

discovery order. Rule 16(d)(2) of the Federal Rules of Criminal 

Procedure provides the district court with broad discretion to 

fashion the appropriate remedy for a party’s discovery 

violation. Yet, its discretion is guided by “a discrete set of 

traditionally judicial inquiries concerning ‘the reasons for the 

government’s delay and whether it acted intentionally or in bad 

faith; the degree of prejudice, if any, suffered by the 

defendant; and whether any less severe sanction will remedy the 

prejudice and the wrongdoing of the government.’” United States 

v. Gonzales-Flores, 701 F.3d 112, 116 (4th Cir. 2012) (quoting 

United States v. Hastings, 126 F.3d 310, 317 (4th Cir. 1997)). 
6

Flores-Duran maintains that “[d]uring the week prior to 

trial, [that was then set for April 2011,] the [g]overnment sent 

over one thousand pages of additional discovery, the bulk of 

which was due no later than fourteen days prior to trial.” 

Based on the discovery violation, Flores-Duran moved to dismiss 

the indictment. He also sought, as alternatives, to exclude 

certain witnesses or to continue the trial. The district court 

continued the trial to May 2011. 

The government concedes that it failed to provide all of 

the discovery materials that it was obligated to provide within 

the time period required by the magistrate judge. According to 

the government, however, there were several reasons for the 

failure, including government counsel’s misreading of the 

discovery order; a power outage caused by a large storm at the 

courthouse in Raleigh, where the government’s offices are 

located; and the government’s last minute decision to present 

certain evidence. 

Flores-Duran argues that he was prejudiced by the 

government’s late disclosure in two ways. “First, the 

[g]overnment’s action delayed the trial of his case. There can 

be no reason for the late release of over one thousand pages of 

documents other than to ensure a continuance of the trial.” 

But, this suggests bad faith on behalf of the government, and 

neither we nor the district court have found any. Instead, we, 
7

like the district court, find the government’s explanation 

plausible. As explained by the district court:

Well, I have three defendants, each of whom, 

through his attorney, indicates that he is not 

prepared to go forward to trial. And, what’s been 

described, with the overlay of a storm, is somewhat of 

a perfect storm. The government’s decision not to 

prepare for this trial until the eve of it, based on 

workload issues and other matters, and that 

preparation resulted in a determination that a number 

of other documents needed to be disclosed.

And then there was a storm, and there were issues 

arising, and the disclosure was suggested as being 

late in an e-mail to which no defendant responded.

There was some effort on the part of all counsel, 

it appears, to be ready today, despite the volume of 

material disclosed last week. And I understand none 

of you is ready for trial.

Each of you seeks a continuance of between three 

weeks and a month, and I’m going to allow that, with 

concern, too, as we have approximately 50 people ready 

to submit to the jury processes. And the Court will 

be explaining to them that their services cannot be 

received today. 

Flores-Duran also asserts that he was prejudiced because 

“the continuance afforded the [g]overnment more time to locate 

Alan Pickering who identified Genaro Flores-Duran as the man who 

paid to rent his trailer.” We find this argument unpersuasive, 

and will discuss it in more detail in the next section. 

As already stated, we find the reasons given by the 

government for the delay to be credible. And, we find no bad 

faith. Flores-Duran would have been greatly prejudiced had the 

district court not provided some sort of remedy for the 

government’s discovery violation. That said, we are satisfied 
8

that the district court’s choice of a continuance, as opposed to 

outright dismissal, cured any prejudice and was not an abuse of 

discretion. 

III.

Flores-Duran maintains that the district court also abused 

its discretion in not excluding Pickering’s testimony and 

related documents based on the government’s late disclosure that 

it intended to call him as a witness. “[D]ecisions regarding 

whether a witness should be allowed to testify are generally 

reviewed for abuse of discretion.” United States v. Fulks, 454 

F.3d 410, 421 (4th Cir. 2006). 

Pursuant to Rule 16(a)(1)(E) of the Federal Rules of 

Criminal Procedure, 

Upon a defendant’s request, the government must permit 

the defendant to inspect and to copy or photograph 

books, papers, documents, data, photographs, tangible 

objects, buildings or places, or copies or portions of 

any of these items, if the item is within the 

government’s possession, custody, or control and: 

(i) the item is material to preparing the defense; 

(ii) the government intends to use the item in its 

case-in-chief at trial; or 

(iii) the item was obtained from or belongs to the 

defendant. 

The obligation to provide these materials is ongoing:

A party who discovers additional evidence or material 

before or during trial must promptly disclose its 

existence to the other party or the court if:
9

(1) the evidence or material is subject to discovery 

or inspection under this rule; and 

(2) the other party previously requested, or the court 

ordered, its production. 

Fed. R. Crim. P. 16(c).

When replacement counsel took responsibility for this case 

in mid-May, approximately two weeks before the case was to go to 

trial, she requested that law enforcement agents find the 

landlord of the second trailer in Loris, South Carolina, which 

Flores-Duran rented and used as a stash house for his drug 

operation. Authorities recovered firearms, over a kilogram of 

cocaine, and over one-hundred thousand dollars in United States 

currency when they raided the trailer. Flores-Duran had earlier 

used another trailer in Loris as a stash house. Government’s 

counsel informed defense counsel that she had made this request. 

On Friday afternoon, May 20, 2011, which was the Friday 

before trial was to begin, the agents met with the landlord, 

Alan Pickering. At that meeting, Pickering gave the agents 

documents related to the rental of the second trailer and made 

an out-of-court identification of Flores-Duran. The next day, 

counsel for the government faxed the documents to counsel for 

Flores-Duran but failed to telephone to ensure receipt. As it 

turned out, Flores-Duran’s counsel did not receive the documents 

until Monday—what was to be the first day of trial. The 

district court was troubled by the late disclosure but decided 

not to exclude the testimony. Instead, it continued the trial 
10

for a month. This was proper, and Flores-Duran does not argue 

otherwise in his brief. 

According to Flores-Duran, however, it was the April 2011 

continuance that prejudiced him such that the district court 

should not have allowed Pickering to testify. Flores-Duran 

avows, “Without that continuance, the [g]overnment would not 

have had Alan Pickering available as a witness. Genaro FloresDuran was prejudiced by both the continuance and also by the 

denial of the motion to exclude Mr. Pickering’s documents, photo 

identification, and his other testimony.” We make two 

observations. First, there is nothing in the record to suggest 

that the government did anything to delay the trial so that 

Pickering could be found. In fact, there was no attempt to find 

Pickering until after the April 2011 continuance had been 

ordered. And second, just as the continuance allowed the 

government additional time to locate a witness favorable to its 

case, Flores-Duran had additional time to locate witnesses that 

might have been favorable to his case, as well. 

For these reasons, we conclude that the district court did 

not abuse its discretion in its refusal to exclude Pickering’s 

testimony and related documents from Flores-Duran’s trial. 

IV.

Flores-Duran next challenges the district court’s decision 

to deny his motion to exclude Pickering’s out-of-court 
11

photographic identification of him. We review “factual 

particulars of [the] identification . . . for clear error.” 

United States v. Saunders, 501 F.3d 384, 389 (4th Cir. 2007). 

And, “[w]e review de novo the court’s legal conclusion as to 

whether the identification violated the Due Process Clause.” 

Id. 

The defendant has the burden of establishing that the outof-court identification was infirm. Id. “The consideration of 

whether the identification testimony is admissible proceeds in 

two steps.” Id. First, the defendant must demonstrate the 

identification process was impermissibly suggestive. Id. If he 

meets this burden, then the court must consider “whether the 

identification was nevertheless reliable in the context of all 

of the circumstances.” Id. at 389-90. 

“A witness’s out-of-court photo identification that is 

unreliable and therefore inadmissible on due process grounds 

also renders as inadmissible his subsequent in-court 

identification.” Id. at 390. “In this circumstance, as the 

Supreme Court has said, the witness ‘is apt to retain in his

memory the image of the photograph rather than the person 

actually seen, reducing the trustworthiness of subsequent . . . 

courtroom identification.’” Id. (quoting Simmons v. United 

States, 390 U.S. 377, 383-84 (1968)).

According to the testimony at the district court hearing on 

this matter, Officer William Kitelinger, a corporal with the 
12

Myrtle Beach Police Department, met Pickering at Colonial Mall 

between Myrtle Beach and North Myrtle Beach at approximately 

4:00 PM on May 20, 2011. According to his testimony, he

showed [Pickering] three photographs, asked him if he 

recognized anybody in any of the photographs. He 

immediately identified one person in the photograph. 

I asked him who that person was and he said that was 

the person that gave him the money for the rent or was 

present when the trailer was rented. I had him then 

turn over the picture and write on the back who that 

person was to him. Then he gave me a photocopy of a 

receipt for the rent for the trailer. I then 

collected up those items and left.

Kitelinger asserted that he failed to give the cautionary 

instruction normally given for a photo lineup because “it wasn’t 

in [his] opinion a photo lineup. The photos given were people 

that we had already identified, so it wasn’t standard.” 

Further, he agreed that, in a standard lineup, there are 

normally six, not three, photographs shown. In Pickering’s 

testimony at the hearing, he stated that he felt no pressure to 

choose one of the photographs and did not feel rushed, although 

Kitelinger seemed as if he was in a hurry. 

According to Flores-Duran, “[t]he officer gave Mr. 

Pickering no guidance when the Myrtle Beach Police Department 

officers routinely provide cautionary instructions to people 

viewing photos. The method employed was impermissibly 

suggestive, and as such, the district court erred in allowing 

admission of the out-of-court identification.” But we agree 

with the district court: It “had an opportunity to observe both 

witnesses and hear what [they] each had to say in response to 
13

[counsel’s] questions. [Although] it certainly seems it was a 

brief encounter and not a very involved one, [Pickering’s] 

identification of [Flores-Duran] may be allowed into evidence as 

it was not an unduly suggestive process.” 

Because the identification was not impermissibly 

suggestive, there is no reason for us to consider whether it was 

reliable. Consequently, we find no error in the district 

court’s decision to deny Flores-Duran’s motion to exclude 

Pickering’s out-of-court photographic identification of him. 

V.

Next, Flores-Duran complains that the district court erred 

in not granting his motion for judgment of acquittal on the gun 

charge. Our review of the district court’s denial of a motion 

for judgment of acquittal is de novo. United States v. United 

Med. & Surgical Supply Corp., 989 F.2d 1390, 1401 (4th Cir. 

1993). In making such a review, we must decide “whether there 

is substantial evidence (direct or circumstantial) which, taken 

in the light most favorable to the prosecution, would warrant a 

jury finding that the defendant was guilty beyond a reasonable 

doubt.” United States v. MacCloskey, 682 F.2d 468, 473 (4th 

Cir. 1982).

According to Flores-Duran, there is no substantial evidence 

to support a finding that he possessed a firearm in furtherance 

of the drug conspiracy charged in Count One of the superseding 
14

indictment. But, “[a] defendant may be convicted of a § 924(c) 

charge on the basis of a coconspirator’s use of a gun if the use 

was in furtherance of the conspiracy and was reasonably 

foreseeable to the defendant.” United States v. Wilson, 135 

F.3d 291, 305 (4th Cir. 1998). There are many ways in which a 

firearm might be used to further or advance drug trafficking:

For example, a gun could provide a defense against 

someone trying to steal drugs or drug profits, or it 

might lessen the chance that a robbery would even be 

attempted. Additionally, a gun might enable a drug 

trafficker to ensure that he collects during a drug 

deal. And a gun could serve as protection in the 

event that a deal turns sour. Or it might prevent a 

transaction from turning sour in the first place.

United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002).

There is considerable evidence in the record to support 

Flores-Duran’s §§ 924(c) and 2 conviction. For instance, there 

were approximately thirteen guns in the first Loris trailer that 

Flores-Duran rented for selling cocaine. As Esteban Rivera, one 

of Flores-Duran’s co-conspirators, testified at trial, the guns 

were for him and others “to defend [themselves] from people who 

may want to come in and rob or if there were any problems 

between [the customers] or the police.” When Rivera and his 

coconspirators moved into the second Loris trailer that FloresDuran rented, they took the guns with them. Asked where the 

guns came from, Rivera stated that Flores-Duran “bought them 

from this guy that came one time. It was a Mexican guy.” He 

also attested that on a couple of occasions he and Flores-Duran 

tried out one of the guns.
15

Moreover, Luis Cesar-Rosas testified that on March 24, 

2010, when he purchased ten ounces of cocaine from Flores-Duran 

at the second Loris trailer, “There was a gun on the countertop, 

it was right where you walk in the door. . . . I recall I did 

see it on the first time I was there. He had it on his 

waistline but the other time it was laying on the countertop.” 

The record is replete with many more examples that we need 

not enumerate here. Suffice it to say, substantial evidence 

supports Flores-Duran’s § 924(c) and 2 conviction. 

VI.

Flores-Duran also argues that the district court erred in 

denying his motion to suppress evidence obtained during the 

August 11, 2010, traffic stop in Jasper County, South Carolina. 

Although he consented to the search of his vehicle, he avers 

that the traffic stop itself was improper. Ordinarily, on a 

motion to suppress we review a district court’s legal 

conclusions de novo and its factual findings for clear error. 

See Ornelas v. United States, 517 U.S. 690, 699 (1996). In 

doing so, we construe the evidence in the light most favorable 

to the prevailing party below. United States v. Perkins, 363 

F.3d 317, 320 (4th Cir. 2004). But when, as here, the 

magistrate judge makes a recommendation on how to dispose of the

motion and a party fails to timely object, that party waives 

appellate review of the district court’s decision to adopt the 
16

recommendation. Wright v. Collins, 766 F.2d 841, 845 (4th Cir. 

1985). 

A magistrate judge considered Flores-Duran’s motion to 

suppress and issued a memorandum and recommendation to the 

district court suggesting that it deny the motion. In his 

recommendation, the magistrate judge noted that the parties 

would have fourteen days to file any objections and declared 

that failure to file any objections by a party would bar that 

party from seeking appellate review. Still, Flores-Duran failed 

to file any objections to the memorandum and recommendation. 

Thus, Flores-Duran waived appellate review. The district court 

subsequently adopted the recommendation and denied FloresDuran’s motion to suppress. 

Alternatively, even assuming that Flores-Duran preserved 

this issue for appeal, we would still hold that the district 

court did not err in finding that Deputy Jenkins had probable 

cause to stop Flores-Duran for a violation of South Carolina 

Code Section 56-5-1930(a). Pursuant to Section 56-5-1930(a), 

“The driver of a motor vehicle shall not follow another vehicle 

more closely than is reasonable and prudent, having due regard 

for the speed of such vehicles and the traffic upon and the 

condition of the highway.” “As a general matter, the decision 

to stop an automobile is reasonable where the police have 

probable cause to believe that a traffic violation has 

occurred.” United States v. Sowards, 690 F.3d 583, 588 (4th 
17

Cir. 2012) (quoting Whren v. United States, 517 U.S. 806, 810

(1996)) (internal quotation marks omitted). 

The evidence the government presented at the hearing on 

this matter demonstrated the following: In deciding whether a 

vehicle is following another vehicle too closely, Deputy Jenkins 

employs a rule of thumb that a safe following distance is 

approximately one car length for every ten miles per hour that 

the vehicle is traveling. In this instance, Deputy Jenkins 

observed Flores-Duran driving seventy miles per hour within just 

one car length of a tow truck as he approached an active 

construction site. 

Flores-Duran argues that he was stopped for a violation of 

Deputy Jenkins’ rule of thumb and not Section 56-5-1930(a). 

Thus, according to Flores-Duran, Deputy Jenkins did not have 

probable cause to stop him. We are unconvinced. Because Deputy 

Jenkins thought that Flores-Duran was following the tow truck 

“more closely than [was] reasonable and prudent,” S.C. Code 

Ann. § 56-5-1930(a), he had probable cause to initiate a stop of 

Flores-Duran’s vehicle. Hence, because Jenkins had probable 

cause to initiate the stop, and Flores-Duran consented to the 

search of his vehicle, the district court properly denied 

Flores-Duran’s motion to suppress the evidence gathered as a 

result of the stop.

VII.
18

As to sentencing, Flores-Duran claims that the district 

court erred in overruling his objection to the four-point 

enhancement that it ultimately imposed pursuant to U.S.S.G.

§ 3B1.1(a). When deciding whether the district court properly 

applied the Sentencing Guidelines, “we review the court’s 

factual findings for clear error and its legal conclusions de 

novo.” United States v. Allen, 446 F.3d 522, 527 (4th Cir. 

2006). The district court’s decision concerning a role 

adjustment is a factual determination, reviewable for clear 

error. United States v. Kellam, 568 F.3d 125, 147-48 (4th Cir. 

2009). “A finding of fact is clearly erroneous when, ‘although 

there is evidence to support it, the reviewing court on the 

entire evidence is left with the definite and firm conviction 

that a mistake has been committed.’” In re Mosko, 515 F.3d 319, 

324 (4th Cir. 2008) (quoting United States v. U.S. Gypsum Co., 

333 U.S. 364, 395 (1948)).

The district court applied a four-level enhancement for 

Flores-Duran’s leadership role in the drug conspiracy. FloresDuran argues, however, that the evidence establishes that he 

engaged in only buyer-seller relationships. 

Pursuant to Section 3B1.1(a) of the Sentencing Guidelines, 

the district court is to impose a four-level enhancement to a

defendant’s sentence “[i]f the defendant was an organizer or 

leader of a criminal activity that involved five or more 

participants or was otherwise extensive.” In determining 
19

whether one is a leader or organizer, the district court should 

consider the following factors: 

the exercise of decision making authority, the nature 

of participation in the commission of the offense, the 

recruitment of accomplices, the claimed right to a 

larger share of the fruits of the crime, the degree of 

participation in planning or organizing the offense, 

the nature and scope of the illegal activity, and the 

degree of control and authority exercised over others.

U.S.S.G. § 3B1.1 cmt. n.4.

As detailed in the Addendum to the Presentence Report and 

relied upon by the district court, 

Flores-Duran engaged in a conspiracy to distribute 

cocaine from 2004 to August 11, 2010. Specifically, 

in 2004, [Flores-Duran] relocated from Florida to 

North Carolina and began selling cocaine with his 

brother, Salvador Flores-Duran; however, a short time 

later, the brothers began obtaining cocaine separately 

but from the same sources, and utilizing several of 

the same co-conspirators in their drug distribution 

activities. To further the conspiracy, Genaro FloresDuran also recruited individuals to pick up and 

distribute cocaine for him, established stash houses 

to store and distribute cocaine, and employed an 

individual to count and package money brought into one 

of the stash houses. Specifically, Concepcion 

Villegas[-]Flores was paid a total of $10,000 to 

travel to Georgia on at least seven occasions to pick 

up several kilograms of cocaine for Genaro FloresDuran and Salvador Flores-Duran. Additionally, Luis 

[Cesar-]Rosas sold over 250 grams of cocaine to a 

confidential informant for [Flores-Duran]. Lastly, 

Genaro Flores-Duran employed Esteban Rivera to count 

and package money brought into his (Genaro FloresDuran’s) stash house located in Loris, South Carolina. 

Concerning the district court’s imposition of the 

enhancement, having carefully reviewed the entire record before 

us, we are not “left with the definite and firm conviction that 

a mistake has been committed.” In re Mosko, 515 F.3d at 324 

(quoting U.S. Gypsum Co., 333 U.S. at 395) (internal quotation 
20

marks omitted). Hence, we find no clear error in the district 

court’s decision to employ the four-level enhancement to FloresDuran’s sentence.

VIII.

Finally, Flores-Duran contests the district court’s 

decision denying his motion to dismiss the gun charge for lack 

of venue. “[W]e review the district court’s determination of 

venue de novo.” United States v. Wilson, 262 F.3d 305, 320 (4th 

Cir. 2001). 

Flores-Duran makes no real argument here, except to state 

that “[he] seeks to preserve this issue on appeal.” In fact, at 

oral argument, his counsel agreed that the government cited the 

appropriate law on this issue. Thus, we only briefly address 

this issue here.

“In determining where a crime was committed for purposes of 

venue, ‘a court must initially identify the conduct constituting 

the offense (the nature of the crime) and then discern the 

location of the commission of the criminal acts.’” United 

States v. Robinson, 275 F.3d 371, 378 (4th Cir. 2001) (quoting 

United States v. Rodriguez-Moreno, 526 U.S. 275, 279 (1999)). 

The underlying offense here is a drug conspiracy. Venue is 

proper in a § 942(c) prosecution in any district where the 

underlying offense occurred. Rodriguez-Moreno, 526 U.S. at 281. 

Several overt acts in furtherance of the conspiracy occurred in 
21

the Eastern District of North Carolina, including, but not 

limited to, selling cocaine, receiving deliveries of cocaine, 

and recruiting or attempting to recruit other accomplices. 

Thus, because the underlying offense occurred in the Eastern 

District of North Carolina, venue was proper in that district. 

Hence, the district court did not err in denying Flores-Duran’s 

motion to dismiss for lack of venue. 

IX.

For the foregoing reasons, we affirm Flores-Duran’s 

conviction and sentence.

AFFIRMED