UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4656

FAUSTO RUIZ-VARGUS,

Defendant-Appellant. 

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

N. Carlton Tilley, Jr., Chief District Judge.

(CR-00-407)

Submitted: February 5, 2002

Decided: February 15, 2002

Before WIDENER and TRAXLER, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Thomas H. Johnson, Jr., GRAY, NEWELL, JOHNSON & BLACKMON, L.L.P., Greensboro, North Carolina, for Appellant. Anna Mills

Wagoner, United States Attorney, Steven H. Levin, 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Unpublished opinions are not binding precedent in this circuit.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: 

Fausto Ruiz-Vargus was charged in three counts of an eleven-count

indictment. In Count 1, he was charged with conspiracy to knowingly

and intentionally distribute in excess of five kilograms of cocaine

hydrochloride and in excess of 100 kilograms of marijuana in violation of 21 U.S.C.A. §§ 841(a)(1), 846 (West 1999); in Count 2, he

was charged with knowingly and intentionally possessing with intent

to distribute approximately 31.2 kilograms of cocaine hydrochloride

in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(A); and in Count 3, he

was charged with knowingly and intentionally possessing with intent

to distribute 8.26 kilograms of marijuana in violation of 21 U.S.C.A.

§ 841(a)(1), (b)(1)(D). Ruiz-Vargus was convicted following a jury

trial and sentenced to 200 months in prison for Counts 1 and 2, and

sixty months for Count 3, to run concurrently with the sentence for

Counts 1 and 2. Ruiz-Vargus appeals his conviction and sentence. 

First, Ruiz-Vargus argues the district court should have granted his

motion for judgment of acquittal because there was insufficient evidence to show he participated in a drug conspiracy. We review the

verdict to determine whether there is substantial evidence, taken in

the light most favorable to the Government, to support the conviction.

Glasser v. United States, 315 U.S. 60, 80 (1942). When considering

the sufficiency of the evidence, we do not review the credibility of a

witness’s testimony. United States v. Hobbs, 136 F.3d 384, 391 n.11

(4th Cir. 1998). We have reviewed the evidence and find, when

viewed in the light most favorable to the Government, the evidence

is sufficient to support Ruiz-Vargus’ conspiracy conviction. 

Second, Ruiz-Vargus argues the testimony of Ponciano Carlos

Duarte should not have been admitted under Fed. R. Evid.

801(b)(2)(E). Because the admission of the testimony was not

objected to at trial, we review the admission of the evidence for plain

2 UNITED STATES v. RUIZ-VARGUS
error. See United States v. Olano, 507 U.S. 725, 732-36 (1993). We

have reviewed the record and found no error. 

Finally, Ruiz-Vargus argues the district court erred in allowing

Hermino Martinez-Penalosa, a co-defendant, to assert his Fifth

Amendment privilege against self-incrimination at the sentencing

hearing. Ruiz-Vargus sought Martinez-Penalosa’s testimony to refute

Duarte’s testimony at trial that supported an obstruction of justice

sentencing enhancement. The district court, however, based its application of the obstruction of justice enhancement on factors other than

Duarte’s testimony. 

We therefore affirm Ruiz-Vargus’ conviction and sentence. 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

UNITED STATES v. RUIZ-VARGUS 3