United States of America v.  ANDRES OJEDA-CRUZ, a/k/a Alvaro

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4372 
ANDRES OJEDA-CRUZ, a/k/a Alvaro,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 01-4387  MIGUEL OJEDA-CRUZ, a/k/a Rigo,
a/k/a Miguel Ojeda-Angeles, a/k/a
Franklin Figueroa-Alvarado,
Defendant-Appellant. 
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-00-74-MU)
Submitted: January 29, 2002
Decided: February 12, 2002
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.

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COUNSEL
Mark P. Foster, Jr., Charlotte, North Carolina; Eric A. Bach, Char-
lotte, North Carolina, for Appellants. Robert J. Conrad, Jr., United
States Attorney, Brian Lee Whisler, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Brothers Andres Ojeda-Cruz (Andres) and Miguel Ojeda-Cruz
(Miguel) were tried by a jury and convicted of conspiracy to commit
fraud and misuse of identification documents, 18 U.S.C. §§ 371,
1028(a)(3), (a)(5), 1526 (West 2000) (Count 1); possession of false
identification documents with intent to distribute, and aiding and abet-
ting, 18 U.S.C.A. §§ 1028(a)(3), 18 U.S.C. § 2 (1994) (Count 2); pos-
session of document-making implements with intent to produce false
identification documents, and aiding and abetting, 18 U.S.C.A.
§§ 1028(a)(5), 2 (Count 3);* uttering counterfeit false alien registra-
tion receipt cards, and aiding and abetting, 18 U.S.C.A. §§ 1546(a),
2 (Count 4); and possession of false Social Security cards with intent
to distribute, and aiding and abetting, 42 U.S.C.A. § 408(a)(7)(C)
(West 2001), 18 U.S.C. § 2 (Count 5). Miguel was also convicted of
illegally reentering the country after being deported, 8 U.S.C.A.
§ 1326(a) (West 1999) (Count 8). Andres was sentenced to a term of
thirty-three months imprisonment. Miguel received a sentence of
thirty-six months imprisonment for the conspiracy and related convic-
tions, and a concurrent twenty-four-month sentence for illegal reentry.
Andres appeals his conviction on all counts, alleging that the evidence
*In Miguel’s case, Count Three was later dismissed on the govern-
ment’s motion.
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was insufficient to support the convictions. Both Andres and Miguel
appeal their sentences on the ground that the district court clearly
erred in finding that they were responsible for sentencing purposes for
an offense involving 100 or more documents. See U.S. Sentencing
Guidelines Manual § 2L2.1(b)(2)(C) (2000). Andres also contends
that the district court clearly erred when it rejected his claim that he
was a minimal or minor participant in the offense. We affirm.
After agents of the Immigration and Naturalization Service (INS)
and the North Carolina Bureau of Investigation learned that counter-
feit identification documents were being produced and sold in Char-
lotte, North Carolina, and purchased several such documents through
informants, they conducted a search of three apartments on March 23,
2000. Miguel Ojeda-Cruz was living in one of the apartments with his
small son. Also present were two men later charged as co-defendants
in the instant offenses, two boxes of business cards, a Polaroid camera
and a camera stand used for close-up pictures of photographs, blank
Social Security cards, and several counterfeit identification docu-
ments with Andres’ picture on them. The business cards in one of the
boxes bore the name "Alvaro."
The other two apartments that were searched appeared to be used
solely for the production of documents, and contained a variety of
equipment for that purpose, as well as a total of 287 cut-out photo-
graphs of individuals. On the back of each photograph, biographical
information was written, as well as the nickname of the conspirator
who had dealt with the individual. A notebook and a day planner were
seized, both of which contained tally sheets that recorded sales by the
conspirators. Miguel’s nickname, "Rigo," appeared on thirty-eight of
the cut-out photographs and on the tally sheets. The name "Alvaro"
also appeared in the ledgers.
On the same day, agents arrested Andres Ojeda-Cruz with
Alphonso Andres ("Omar") Perez-Cruz, the suspected leader of the
counterfeit document ring as they were reportedly about to leave
town. Andres was carrying business cards bearing the name "Alvaro,"
a counterfeit Mexican driver’s license in his own name, and an
answer key for the North Carolina driver’s license written test. When
interviewed after his arrest, Andres admitted being involved in the
distribution of counterfeit identification documents, but said he was
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not involved in their manufacture, and that the person who manufac-
tured the documents was Esteban Garza. Garza was not named in the
indictment. However, Andres was carrying an address book contain-
ing the names and addresses of many of the co-defendants in the
instant offense. At trial, Edgardo Pablo-Roman, who was arrested in
one of the apartments but not charged in the offense, testified that he
knew Miguel as Rigo and Andres as Alvaro, that he had seen both of
them with photographs and false documents, and that he once accom-
panied Andres when he went to take a photograph. Pablo-Roman also
testified that he had seen Andres and Miguel handing out business
cards to potential customers.
We find first that the evidence was sufficient to support Andres’
conviction. A guilty verdict must be sustained if there is substantial
evidence to support it. Glasser v. United States, 315 U.S. 60, 80
(1942). The government is permitted the benefit of all reasonable
inferences from the facts proved to the facts sought to be established.
United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). In
evaluating the evidence, this court does not review the credibility of
the witnesses, and assumes that the jury resolved all contradictions in
the testimony in favor of the government. United States v. Romer, 148
F.3d 359, 364 (4th Cir. 1998), cert. denied, 525 U.S. 1141 (1999).
Based on the evidence presented at trial, the jury could reasonably
conclude that Andres was involved in the charged conspiracy and had
at least aided and abetted the commission of each of the substantive
offenses.
We review the district court’s factual findings concerning sentenc-
ing under the clearly erroneous standard. United States v. Daughtrey,
874 F.2d 213, 217 (4th Cir. 1989). Although the government did not
prove that either Andres or Miguel had direct involvement with 100
or more counterfeit documents, the district court could infer from the
evidence introduced at trial, and summarized by the government at
sentencing, that both Andres and Miguel were aware of their co-
defendants’ activities and were themselves active participants in the
conspiracy, and that it was at least reasonably foreseeable to them that
their conspirators had produced 100 or more counterfeit documents.
See USSG § 1B1.3(a)(1)(B). Therefore, the district court did not
clearly err in making the enhancement under USSG § 2L2.1(b)(2)(C).
The court’s finding was adequate in that it adopted the reasoning of
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the probation officer’s response to Appellants’ objections to the pre-
sentence report and the government’s argument at sentencing.
Finally, we find no error in the district court’s determination that
Andres had more than a minimal or minor role in the offense. A
defendant has a minimal role in a concerted criminal activity if he is
"among the least culpable of those involved in the conduct of a
group." USSG § 3B1.2, comment. (n.1). A minimal role is indicated
by a defendant’s "lack of knowledge or understanding of the scope
and structure of the enterprise and of the activities of others . . . ."
(Id.). Application Note 3 to § 3B1.2 defines a minor participant as
"any participant who is less culpable than most other participants, but
whose role cannot be described as minimal." The defendant has the
burden of showing by a preponderance of the evidence that he is enti-
tled to a mitigating role adjustment. United States v. Akinkoye, 185
F.3d 192, 202 (4th Cir. 1999), cert. denied, 528 U.S. 1177 (2000).
Although Andres’ precise role in the conspiracy was not established,
the evidence did not show that he was less culpable than the other
conspirators. Therefore, we cannot find that the district court clearly
erred in refusing him a two-level or four-level reduction under
§ 3B1.2.
We accordingly affirm the convictions and sentences. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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