940 F2d 654 United States v. Roig

940 F.2d 654
Unpublished Disposition

UNITED STATES of America, Plaintiff-Appellee,
Michael Reynolds ROIG, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
Gerri Roig SCHWARTZBACH, Defendant-Appellant.

Nos. 90-5091, 90-5095.

United States Court of Appeals, Fourth Circuit.

Submitted April 10, 1991.
Decided July 29, 1991.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeals from the United States District Court for the Middle District of North Carolina, at Salisbury. Frank W. Bullock, Jr., District Judge. (CR-90-106-S)

J. Matthew Martin, Martin & Martin, P.A., Hillsborough, N.C., for appellant Roig;

Charles Leroy White, Susan Hayes, Greensboro, N.C., for appellant Schwartzbach.

Robert H. Edmunds, Jr., United States Attorney, David B. Smith, Assistant United States Attorney, for appellee.



K.K. HALL, WILKINSON and NIEMEYER, Circuit Judges.



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In these consolidated cases, Michael Roig (No. 90-5091) appeals from a jury verdict which found him guilty of conspiracy to distribute cocaine, and his resulting sentence of 132 months imprisonment, a $2500 fine, and a four-year supervised release term. Gerri Roig Schwartzbach (No. 90-5095) appeals from her sentence of 121 months and a four-year supervised release term which resulted from her guilty plea to conspiracy. We affirm.


Michael Roig argues on appeal that the government's chief witness, Charles Tony Norman, "should be held incredible as a matter of law" because Norman admitted that he had been involved in the distribution of drugs for over fifteen years. Norman also acknowledged his involvement in other exploits involving the Hell's Angels, firearms, and drugs. He admitted that his testimony in Roig's case would have an impact on his own sentence for another conviction and that he would lose the benefit of any plea agreement if his testimony were not truthful. Norman testified that he had purchased cocaine from Roig and his accomplices on four occasions.


In evaluating the sufficiency of evidence to support a conviction, the relevant question is whether, viewing the evidence in the light most favorable to the government, any rational trier of facts could have found the defendant guilty beyond a reasonable doubt. United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir.1982). (Emphasis in original; citations omitted). This Court must consider circumstantial as well as direct evidence, and allow the government the benefit of all reasonable inferences from the facts proven to those sought to be established. Id. Where there are conflicts in testimony, it is for the jury and not the appellate court to weigh the evidence and judge the credibility of the witnesses. Id. This Court is bound by the "credibility choices of the jury," and does not weigh evidence or review credibility of witnesses in resolving issues of substantial evidence. United States v. Saunders, 886 F.2d 56, 60 (4th Cir.1989), citing United States v. Arrington, 719 F.2d 701, 704 (4th Cir.1983), cert. denied, 465 U.S. 1028 (1984). A defendant may be convicted on the uncorroborated testimony of an accomplice United States v. Figurski, 545 F.2d 389, 392 (4th Cir.1976).


Though the government's witness was not ideal, the jury apparently believed his testimony concerning the drug transactions with Roig. Since the witness' testimony was sufficient to support Roig's conviction and since this Court does not review the credibility of witnesses, we affirm Roig's conviction.


Gerri Roig Schwartzbach pleaded guilty to conspiracy to distribute cocaine. She contends on appeal that she was improperly held accountable at sentencing for quantities of drugs involved in transactions in which she did not participate. Schwartzbach entered a guilty plea to one count of a multi-count indictment. That count charged her with the conspiracy and listed three specific overt acts of distribution of cocaine. The plea agreement she signed stated that "[t]he nature of this charge and the elements of this charge which must be proved by the Government beyond a reasonable doubt before the defendant can by [sic] found guilty thereof have been explained to her by her attorney." The agreement continues that by voluntarily pleading guilty, Schwartzbach knowingly waived her right "to compel the government to prove her guilt beyond a reasonable doubt" and "to have a jury or judge determine her guilt on the evidence presented, and other constitutional rights which attend a defendant on trial in a criminal case."


The trial court held at Schwartzbach's sentencing that it, like the jury in Michael Roig's trial, credited Norman's testimony concerning Schwartzbach's participation in the drug conspiracy. The court asked Schwartzbach's attorney if he was "contesting any of those amounts [of cocaine]," and the attorney responded, "No, Your Honor."


A valid guilty plea constitutes admission of material elements of the crime. McCarthy v. United States, 394 U.S. 459, 466 (1969). The plea is itself a conviction of the offense charged. Boykin v. Alabama, 395 U.S. 238, 242 (1969). When the quantity of a distributed drug goes to the question of a defendant's sentence rather than the question of guilt, the government need only prove that quantity by a preponderance of the evidence. United States v. Powell, 886 F.2d 81, 85 (4th Cir.1989), cert. denied, 58 U.S.L.W. 3527 (U.S.1990). In addition to Schwartzbach's admission, the government's main witness, whom a jury and the trial court found credible, testified as to the specific quantities of cocaine he purchased through transactions in which Schwartzbach was involved. Therefore, the government clearly established the quantities of cocaine in the transactions to which Schwartzbach was linked by a preponderance of the evidence.

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Schwartzbach next asserts that the district court improperly increased her offense level under U.S.S.G. Sec. 2D1.1(b)(1), which permits a two-level increase in offense level if the defendant possessed a dangerous weapon during commission of a drug offense. Presence of the weapon is enough to trigger the adjustment, unless it is "clearly improbable that the weapon was connected with the offense." U.S.S.G. Sec. 2D1.1(b)(1), commentary, n. 3. This Court has held that an accomplice need not physically, independently possess the weapon in order to receive the two-level enhancement if the weapon was present and probably connected to the offense. See United States v. White, 875 F.2d 427, 433 (4th Cir.1989).


Norman testified that Schwartzbach participated in a drug transaction during which her accomplice, Michael Roig, possessed a firearm. From this evidence, the district court reasonably concluded that the weapon was present, that Schwartzbach acted in concert with Roig, that the weapon was connected with the drug transaction, and that it was "reasonably foreseeable" to Schwartzbach that Roig would possess a firearm. Since those findings are not clearly erroneous, the court did not err in the two-level enhancement.


For the above reasons, we affirm both Roig's and Schwartzbach's convictions. 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.