United States of America v. Carlos Conjo-Berera

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5040
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS CONJO-BERERA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:06-cr-00057-RLV-DCK-2)
Submitted: October 22, 2009 Decided: November 10, 2009
Before MICHAEL, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Matthew G. Pruden, TIN, FULTON, WALKER & OWEN, P.L.L.C.,
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Unpublished opinions are not binding precedent in this circuit.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:
Carlos Conjo-Berera was convicted after a jury trial
of one count of conspiracy to possess with intent to distribute
cocaine and cocaine base, in violation of 21 U.S.C. § 846
(2006), and one count of possession with intent to distribute
cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)
(2006), and was sentenced to 324 months in prison. Conjo-Berera
timely appealed. Finding no error, we affirm.
During trial, Conjo-Berera called coconspirator
Ambrocio Aly Orozco to testify, but Orozco invoked his Fifth
Amendment right against self-incrimination. Accordingly, Conjo-
Berera sought to introduce evidence of Orozco’s prior statement
that Conjo-Berera was not his cocaine supplier. The district
court refused to admit the evidence under Federal Rule of
Evidence 804(b)(3). On appeal, Conjo-Berera argues that the
district court erred in excluding this evidence.
We review the district court’s rulings on the
admissibility of evidence for abuse of discretion. United
States v. Blake, 571 F.3d 331, 346 (4th Cir. 2009) (internal
quotation marks and citation omitted). Hearsay is generally not
admissible in evidence. Fed. R. Evid. 802. However, Rule
804(b)(3) provides an exception to the rule when an unavailable
declarant has made a statement against penal interest. A
statement is admissible under this exception if: (1) the
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speaker is unavailable; (2) the statement is actually adverse to
the speaker’s penal interest; and (3) corroborating
circumstances clearly indicate the trustworthiness of the
statement. United States v. Bumpass, 60 F.3d 1099, 1102 (4th
Cir. 1995). The party seeking to introduce the statement has
the formidable burden of establishing these prerequisites.
Blake, 571 F.3d at 350. In this case, the district court
determined that the first two elements were satisfied, but
Conjo-Berera failed to demonstrate “corroborating
circumstances.”
We have previously listed several factors relevant in
assessing corroboration of a statement sought to be admitted
under Rule 804(b)(3):
(1) whether the declarant had at the time of making
the statement pled guilty or was still exposed to
prosecution for making the statement, (2) the
declarant’s motive in making the statement and whether
there was a reason for the declarant to lie,
(3) whether the declarant repeated the statement and
did so consistently, (4) the party or parties to whom
the statement was made, (5) the relationship of the
declarant with the accused, and (6) the nature and
strength of independent evidence relevant to the
conduct in question.
Bumpass, 60 F.3d at 1102. Our review of the record convinces us
that the district court, having correctly found “not even a
minimal level of corroboration,” properly ruled the evidence
should be excluded. Because Conjo-Berera failed to meet the
“corroborating circumstances” element of Rule 804(b)(3), the
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district court did not abuse its discretion in excluding
Orozco’s hearsay statement.
Conjo-Berera next contends that the district court
erred in calculating the drug quantity attributed to him at
sentencing. The district court’s determination of drug amount,
made under a preponderance of the evidence standard, is a
factual issue we review for clear error. United States v.
Kellam, 568 F.3d 125, 147 (4th Cir. 2009). We reverse only if
“left with the definite and firm conviction that a mistake has
been committed.” United States v. Jeffers, 570 F.3d 557, 570
(4th Cir. 2009) (internal quotation marks and citation omitted).
“When a defendant is convicted of a conspiracy involving the
manufacture of cocaine base, the district court must estimate
the total quantity of cocaine base that could be made from any
cocaine powder seized.” United States v. Hyppolite, 65 F.3d
1151, 1158 (4th Cir. 1995).
Our review of the record convinces us that the
district court did not clearly err in calculating the quantity
of drugs attributable to Conjo-Berera. There was sufficient
evidence that Conjo-Berera routinely supplied large quantities
of powder cocaine to Michael Cherry, knowing that Cherry would
cook that cocaine into cocaine base, and having watched Cherry
do so on more than one occasion. Thus, this claim entitles
Conjo-Berera to no relief.
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We therefore affirm the district court’s judgment. 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

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