UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-5240

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MIGUEL GARCIA NUNEZ, a/k/a Cuasito,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Statesville. Richard L. 

Voorhees, District Judge. (5:05-cr-00211-RLV-DCK-2)

Submitted: June 18, 2010 Decided: July 6, 2010

Before NIEMEYER, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Claire J. Rauscher, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, 

INC., Ann L. Hester, Angela Parrot, Cecilia Oseguera, Charlotte, 

North Carolina, for Appellant. Edward R. Ryan, Acting United 

States Attorney, Mark A. Jones, Assistant United States 

Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

A grand jury indicted Miguel Garcia Nunez with 

conspiracy to possess with intent to distribute methamphetamine, 

cocaine, and marijuana, in violation of 21 U.S.C. 

§§ 841(b)(1)(A), (b)(1)(B), (b)(1)(C), (b)(1)(D), 846 (2006), 

and possession with intent to distribute at least fifty grams of 

methamphetamine (two counts), in violation of 21 U.S.C. 

§ 841(a)(1), (b)(1)(B) (2006). After a four-day jury trial, the 

jury found Nunez guilty of all charges. At sentencing, the 

district court imposed a variance sentence (below the advisory 

Guidelines range) of 270 months’ imprisonment on each count, to 

run concurrently. On appeal, Nunez challenges the sufficiency 

of the evidence to sustain the jury convictions as to the counts 

that charged possession with intent to distribute 

methamphetamine and argues that his sentence is unreasonable 

because the district court plainly erred in sentencing him under 

an improperly calculated advisory Guidelines range. We affirm.

We review de novo the district court’s denial of a 

Fed. R. Crim. P. 29 motion for judgment of acquittal. United 

States v. Reid, 523 F.3d 310, 317 (4th Cir.), cert. denied, 129 

S. Ct. 663 (2008). A defendant challenging the sufficiency of 

the evidence “bears a heavy burden.” United States v. Beidler, 

110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks 

omitted). The jury’s verdict must be sustained “if, viewing the 
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evidence in the light most favorable to the prosecution, the 

verdict is supported by substantial evidence.” United States v. 

Smith, 451 F.3d 209, 216 (4th Cir. 2006) (internal quotation 

marks 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.” Id. (internal quotation marks omitted). 

In reviewing for substantial evidence, we consider both 

circumstantial and direct evidence and allow the Government all 

reasonable inferences from the facts shown to those sought to be 

established. United States v. Harvey, 532 F.3d 326, 333 (4th 

Cir. 2008). This court does not weigh evidence or review 

witness credibility. United States v. Wilson, 118 F.3d 228, 234 

(4th Cir. 1997). Rather, it is the role of the jury to judge 

the credibility of witnesses, resolve conflicts in testimony, 

and weigh the evidence. United States v. Manbeck, 744 F.2d 360, 

392 (4th Cir. 1984). “Reversal for insufficient evidence is 

reserved for the rare case where the prosecution’s failure is 

clear.” Beidler, 110 F.3d at 1067 (internal quotation marks 

omitted). 

In his brief, Nunez claims the evidence at trial was 

insufficient to support the jury’s verdict that he possessed 

methamphetamine with the intent to distribute on March 3, 2005 

(count five) and on May 9, 2005 (count nine). To convict a 
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defendant of possession with the intent to distribute, the 

government must prove: (1) possession of a narcotic controlled 

substance; (2) knowledge of the possession; and (3) the intent 

to distribute. United States v. Collins, 412 F.3d 515, 519 (4th 

Cir. 2005). “A defendant is guilty of aiding and abetting if he 

has knowingly associated himself with and participated in the 

criminal venture.” United States v. Burgos, 94 F.3d 849, 873 

(4th Cir. 1996) (internal quotation marks and citation omitted). 

We have reviewed transcripts of the jury trial in light of the 

parties’ arguments and conclude that sufficient evidence 

supports the jury’s verdict as to both counts of possession with 

intent to distribute methamphetamine. 

Nunez also claims that his sentence is procedurally 

and substantively unreasonable because of an alleged 

arithmetical error made by the district court in calculating his 

sentence. We review a sentence for reasonableness, applying an 

abuse of discretion standard. Gall v. United States, 552 U.S. 

38, 51 (2007); see also United States v. Layton, 564 F.3d 330, 

335 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009). In so 

doing, the court first examines the sentence for “significant 

procedural error,” including “failing to calculate (or 

improperly calculating) the Guidelines range, treating the 

Guidelines as mandatory, failing to consider the [18 U.S.C.] 

§ 3553(a) [(2006)] factors, selecting a sentence based on 
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clearly erroneous facts, or failing to adequately explain the 

chosen sentence. . . .” Gall, 552 U.S. at 51. The court then 

“‘consider[s] the substantive reasonableness of the sentence 

imposed.’” United States v. Evans, 526 F.3d 155, 161 (4th Cir.) 

(quoting Gall, 552 U.S. at 51), cert. denied, 129 S. Ct. 476 

(2008). If the sentence is within the Guidelines range, the 

court applies a presumption of reasonableness. Rita v. United 

States, 551 U.S. 338, 346-59 (2007) (upholding presumption of 

reasonableness for within-Guidelines sentence). 

Based on a total offense level of forty-one and a 

criminal history category of I, the probation officer calculated 

a Guidelines range of 324 to 405 months’ imprisonment. Nunez 

argued for a downward variance based in part on an unwarranted 

sentencing disparity among co-defendants. 

In fashioning Nunez’s sentence, the district court 

“credit[ed] the disparity argument to the extent of three levels

which would put defendant at a 39-1 level,” and the court 

“sentence[d Nunez] accordingly, in that the highest sentence for 

the others at this point [was] 135 months.” The district court 

added that “nevertheless, defendant’s role and offense conduct 

was such that the court’s sentence is justified in that he was a 

major source of supply and the key source in this particular 

grouping of defendants.” The court then sentenced Nunez, after 

stating it had considered the sentencing factors under 
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§ 3553(a), to 270 months’ imprisonment on each count, to run 

concurrently. 

On appeal, Nunez correctly notes that a three-level 

reduction from offense level forty-one is offense level thirtyeight, not thirty-nine as indicated by the district court. 

Because Nunez did not object below, his claim is reviewed for 

plain error. “To establish plain error, [Nunez] must show that 

an error occurred, that the error was plain, and that the error 

affected [his] substantial rights.” United States v. Muhammad, 

478 F.3d 247, 249 (4th Cir. 2007). Even if Nunez satisfies 

these requirements, “correction of the error remains within [the 

court’s] discretion, which [the court] should not 

exercise . . . unless the error seriously affect[s] the 

fairness, integrity or public reputation of judicial 

proceedings.” Id. (internal quotation marks and citation 

omitted). 

Here, while the court arguably committed error in 

stating that the resulting offense level after a three-level 

variance was thirty-nine rather than thirty-eight, we find the 

error did not affect Nunez’s substantial rights. In the 

sentencing context, an error affects substantial rights if the 

defendant can show that the sentence imposed “was longer than 

that to which he would otherwise be subject.” United States v. 

Washington, 404 F.3d 834, 849 (4th Cir. 2005) (internal 
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quotation marks and citation omitted); see also United States v. 

Miller, 557 F.3d 910, 916 (8th Cir. 2009) (“In the sentencing 

context, an error was prejudicial only if there is a reasonable 

probability that the defendant would have received a lighter 

sentence but for the error.”). Even assuming that the district 

court erred in stating that the resulting offense level was 

thirty-nine and not in stating that it intended to vary three 

levels rather than two, Nunez cannot show that the court did not 

intend to sentence him to 270 months. See United States v. 

White, 405 F.3d 208, 221 (4th Cir. 2005) (expressing that in 

conducting plain error review this court does not presume 

prejudice but instead requires the defendant to demonstrate 

actual prejudice). 

In this case, we find Nunez cannot show actual 

prejudice in the court’s imposition of a 270-month sentence 

based on an arguably incorrectly calculated Guidelines range. 

Nunez cannot show any substantial likelihood that his sentence 

would have been any different had the district court computed a 

lower advisory Guidelines range of imprisonment. Nunez does not 

point to any non-speculative basis for concluding that the court 

would not have arrived at the same sentence had it started at a 

lower range. See United States v. Knight, ___ F.3d ___, 2010 

WL 2220898 at *7 (4th Cir. June 4, 2010) (noting that, while it 

may have been enough to satisfy Knight’s plain-error burden if 
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the district court had explicitly connected the chosen sentence 

to the advisory range, the court made no such statements and 

therefore Knight’s assertions were pure speculation). Because 

Nunez fails to show his substantial rights were affected, we 

conclude he cannot establish plain error in the district court’s 

presumably erroneous computation of the Guidelines range. We 

further find no abuse of discretion in the chosen sentence.

For the foregoing reasons, we affirm Nunez’s 

convictions 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