USCA4 Appeal: 23-4196 Doc: 36 Filed: 09/16/2024 Pg: 1 of 16

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4196

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

VICENTE ALEJO ANDRES, JR., a/k/a Vicente A. Andres, Jr., a/k/a Vicende Alejo Andres, Jr., a/k/a Vincente Alejo Andres, Jr., a/k/a Vicente Alejo Andreas, Jr., a/k/a Vicente Alejo Andres, a/k/a Vicende Alejo Andres, a/k/a Vincente Alejo Andres, a/k/a Vicente Alejo Andreas, a/k/a Vic,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Roderick Charles Young, District Judge. (2:21-cr-00074-RCY-RJK-1)

Submitted: April 25, 2024 Decided: September 16, 2024

Before RUSHING and BENJAMIN, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: John E. Davidson, DAVIDSON & KITZMAN, PLC, Charlottesville, Virginia, for Appellant. Jessica D. Aber, United States Attorney, Kevin M. Comstock, Matthew J. Heck, Jacqueline R. Bechara, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-4196 Doc: 36 Filed: 09/16/2024 Pg: 2 of 16

PER CURIAM:

Vicente Alejo Andres, Jr., appeals his conviction and 420-month sentence entered

pursuant to the district court’s verdict finding him guilty of various drug and firearm

offenses after a bench trial. On appeal, he raises the claims outlined below. We affirm.

I.

Andres was indicted for the following crimes: (1) methamphetamine and marijuana

conspiracy from 2018 until April 21, 2021 (Count One), in violation of

;

(2) maintaining a place for the purpose of manufacturing, distributing, and using a

controlled substance from 2019 until April 21, 2021 (Count Two), in violation of

(a)(1); (3) possession with intent to distribute 50 grams or more of methamphetamine

on April 21, 2021 (Count Three), in violation of

; (4) possession with intent

to distribute marijuana (Count Four), in violation of

; (5) possession of a

firearm in furtherance of a drug trafficking crime, that is Counts One through Four (Count

Five), in violation of

(c); and (6) possession of a firearm by a convicted

felon (Count Six), in violation of

(g). The evidence at trial established the

following facts.

Sometime in 2018 or 2019, Robin West and Andres moved into a house on

Danwood Drive in Norfolk, Virginia. Since approximately 2013, Andres and West had

been in a romantic relationship. Andres supplied West, her daughter (Sarah Davis), her

daughter’s boyfriend (Chris Fant), and numerous others with methamphetamine, some of

whom further distributed the methamphetamine. Fant once saw Andres with 20 pounds of

methamphetamine at the Danwood Drive house.

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Andres had a “puzzle box” in the home that only he knew how to open, and he stored

marijuana and methamphetamine in it. Andres also kept firearms in the home. While

living at the Danwood Drive house, Andres and West made three or four trips to California

to pick up methamphetamine.

Beginning in late 2020, Margaret Ann Sutton visited the Danwood Drive house

about three to four times per week to get methamphetamine from Andres and redistribute

it. In March 2021, Andres and West’s relationship ended, and West moved out of the

Danwood Drive house. In April 2021, Andres and Sutton started a relationship. That same

month, Andres, Sutton, and two others traveled to California, where Andres bought

methamphetamine and marijuana.

In January 2021, Katherine Moore was released from prison and began selling

methamphetamine for Andres. In March 2021, Moore’s friend gave her the phone number

of a person known as “Ray” and told her Ray was looking for methamphetamine. “Ray”

turned out to be James Luttrell, an undercover investigator with the Norfolk Police

Department. On March 17, 2021, Luttrell purchased methamphetamine from Moore that

she stated came from Andres. On March 23, 2021, Luttrell drove Moore to the Danwood

Drive house, where Andres gave Moore one ounce of methamphetamine to sell to Luttrell,

which she did.

In April 2021, Special Agent Jack Faddis, acting undercover, contacted Moore

about buying methamphetamine. Moore communicated with Sutton about the transaction,

and Sutton stated that she was at the Danwood Drive house. Sutton supplied the

methamphetamine for this transaction because Andres was sleeping. On April 21, 2021,

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Faddis picked Moore up and drove her to Danwood Drive, where Sutton retrieved the

methamphetamine and weighed out four ounces. After Sutton gave her the

methamphetamine, Moore returned to Faddis’s car and sold him three ounces of

methamphetamine. She kept one ounce for herself. Moore then returned to the house and

gave Sutton the money from Faddis.

A few hours after the third controlled buy, officers executed a search warrant on the

Danwood Drive house. Andres and Sutton, the only people present, were detained.

Officers found $2,400 of the buy money on Sutton’s person and $3,500 in cash on Andres’

person. Officers found three guns in the house. In the master bedroom, there was a gun

box that housed a .45 Hi-Point caliber handgun and approximately 42 rounds of

ammunition. Also in the master bedroom, on top of the dresser, officers found a loaded,

.9mm Taurus handgun. In the living room, officers found an AR-15 on top of a desk.

Officers also found drugs and drug paraphernalia in the house. In the master bedroom,

police found two packages of methamphetamine inside a laundry basket. They also found

plastic baggies commonly used to divide up illegal narcotics in the master bedroom. Near

the bathroom, officers found the puzzle box, which contained marijuana. Officers also

recovered multiple digital scales from the house.

Andres waived his right to a jury trial and proceeded to a bench trial in August 2022.

In addition to the testimony summarized above, the Government introduced the testimony

of several experts. Faddis testified as an expert in narcotics trafficking and explained the

relationship between firearms and illegal narcotics. He stated that drug dealers need

firearms to protect themselves and their drugs and money from rival drug dealers and

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robbers. In addition, Faddis asserted that it is common for drug dealers to possess firearms

near where the drugs are stored so that the firearms are readily accessible.

The Government also called three forensic chemists employed by the Drug

Enforcement Administration (“DEA”). Brian Makela analyzed the substance seized during

the second controlled buy. Makela performed three tests to identify the substance: gas

chromatography-mass spectrometry, infrared spectroscopy, and a quantitative test to

determine purity. He concluded that the substance contained methamphetamine

hydrochloride. Makela also analyzed the substance seized from the puzzle box and

determined it was marijuana.

When the Government moved to admit Makela’s chemical analysis report of the

methamphetamine into evidence, Andres’ counsel objected. On cross-examination,

Makela indicated that the tests he performed were used to identify the compound and its

unique structure, but the tests did not determine the molecular weight of the substance. He

explained that his identifications were made by comparing the data received on the samples

to known reference standards. On redirect, Makela described the gas

chromatography-mass spectrometry and infrared spectroscopy tests.

Andres’ counsel then asked to follow up on the redirect testimony. The court

responded, “Well, you don’t get recross. It’s direct, cross, and redirect.” (J.A. 416). Andres

maintained his objection to Makela’s report. He argued that Makela had “tested something

that we don’t really know the chemical structure of, or the molecular structure and

compounds of against something, and those two things might be the same thing, but

without the base information, we have to take it on faith that they’re right about what it is.”

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(J.A. 417). The court overruled the objection, reasoning that Makela had “explained the

test that [he] performed for this substance which is the same test that’s normally performed

that’s been accepted, and has explained the method of how they’re able to identify in this

particular instance that the substance tested was methamphetamine.” (J.A. 419).

Jeffrey Lamb analyzed the substances recovered from the laundry basket in the

master bedroom of the Danwood Drive house, as well as the substance seized during the

third controlled buy. He concluded that the substances were methamphetamine

hydrochloride. To reach his conclusions, Lamb performed a gas chromatography-mass

spectrometry test, an infrared spectrometry test, and a Marquis color test. The court

admitted Lamb’s chemical analysis reports into evidence over Andres’ objections.

Lora Lopez analyzed the substance seized during the first controlled buy and

concluded that the substance contained methamphetamine hydrochloride. She conducted

a gas chromatography-mass spectrometry test and an infrared spectrometry test. Over

Andres’ objections, the court admitted Lopez’s chemical analysis report into evidence.

The court found Andres guilty of all charged counts. At his sentencing, Andres

argued that the Sentencing Guidelines created an unwarranted disparity by punishing Ice

methamphetamine more harshly than mixtures of methamphetamine. Because the

Government had proven that the offenses involved actual, not Ice, methamphetamine, the

court directed the probation officer to revise the presentence report accordingly. However,

that revision did not change the Guidelines range.

Based on a total offense level of 44 and a criminal history category of III, Andres’

advisory Guideline range was life imprisonment, plus a consecutive 60 months’

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imprisonment on Count 5. The Government recommended a sentence of life plus 60

months’ imprisonment, and Andres requested a sentence of 240 months’ imprisonment.

After considering the relevant factors under

(a), the court sentenced

Andres to a total of 420 months’ imprisonment.

II.

Andres first challenges the sufficiency of the evidence to convict him on the

§ 924(c) count. We are obliged to sustain a guilty verdict if, viewing the evidence in the

light most favorable to the Government, the verdict is supported by substantial evidence.

United States v. Burgos,

(4th Cir. 1996) (en banc) (citing Glasser v.

United States,

(1942)). We have defined “substantial evidence” as

“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.” Burgos,

.

This court “consider[s] circumstantial as well as direct evidence, [] allow[s] the

government the benefit of all reasonable inferences from the facts proven to those sought

to be established,” United States v. Tresvant,

(4th Cir. 1982), and

assumes that the fact finder resolved all contradictions in the testimony in favor of the

Government. United States v. Brooks,

(4th Cir. 2008). We “can reverse

a conviction on insufficiency grounds only when the prosecution’s failure is clear.” United

States v. Moye,

(4th Cir. 2006) (en banc) (internal quotation marks and

citation omitted).

“In order to prove the § 924(c) violation, the government was required to present

evidence indicating that the possession of a firearm furthered, advanced, or helped forward

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a drug trafficking crime. However, whether the firearm served such a purpose is ultimately

a factual question.” United States v. Perry,

(4th Cir. 2009) (internal

quotation marks and citation omitted). The factors to be considered include the type of

drug activity being conducted, the accessibility of the firearm, the type of weapon, whether

the weapon is stolen, whether the possession of the weapon is legal or illegal, whether the

gun is loaded, proximity to drugs and drug profits, and the time and circumstances under

which the gun was found.

“Finding drugs and firearms in a residence used to sell drugs

supports a finding that the firearms were being used in furtherance of a drug trafficking

crime.” United States v. Hardy,

(4th Cir. 2021).

Andres contends that the Government failed to prove that his possession of the

firearms was in furtherance of drug trafficking. We disagree. Two of the firearms were

found in the master bedroom, in close proximity to methamphetamine and plastic baggies.

One of those firearms was loaded, readily accessible, and sitting on top of a dresser. The

AR-15 was in plain sight in the same room where Sutton had weighed methamphetamine

for the controlled buy just hours before. Andres was involved in the distribution of large

quantities of methamphetamine worth a substantial amount of money. Moreover, he was

a convicted felon, and thus, his possession of a firearm was unlawful. In addition, the

AR-15 was stolen, and the .45 Hi-Point was registered to one of Andres’ drug customers.

Finally, Faddis testified that drug dealers need guns to protect themselves, their product,

and their money from rival drug dealers or robbers and that drug traffickers generally keep

their firearms near their drugs so that the firearms will be accessible. This evidence was

sufficient to support Andres’ conviction.

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III.

Andres asserts that the trial court erred by failing to permit him to recross-examine

Makela. Absent the introduction of any new matter on re-direct examination, the rule is

that recross-examination is not required. United States v. Fleschner,

(4th

Cir. 1996) (stating that re-direct testimony regarding test results did not cover a new subject

when witness testified to taking the test on cross-examination). A district court’s restriction

of cross-examination is reviewed for abuse of discretion. United States v. Scheetz,

(4th Cir. 2002). Moreover, even if the district court’s ruling was an abuse

of discretion, we review for harmless error. See United States v. Smith,

(4th Cir. 2006).

On appeal, Andres asserts that the district court erred by refusing to allow him to

recross Makela “about a new topic the Government had opened in redirect.” (Appellant’s

Br. (ECF No. 24) at 11). However, Andres does not state what that new topic was or

provide any case-specific analysis. In his reply brief, Andres untimely contends that the

new information was the description of the conduct of the various tests. See Grayson O

Co. v. Agadir Int’l,

(4th Cir. 2017) (“A party waives an argument by

failing to present it in its opening brief or by failing to develop its argument—even if its

brief takes a passing shot at the issue.”) (cleaned up). Counsel asserts that, on

recross-examination, he would have “probe[d] for gaps in knowledge, mistakes in

procedure, uncertainty of memory, and so on.” (Reply Br. (ECF No. 39) at 6). However,

Andres still does not provide any specific area of concern to be explored in this “new”

information.

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Makela identified the tests he conducted on direct examination, and counsel was

free to cross-examine on the details of these tests and did so to some degree. Counsel was

also free to cross-examine on gaps in knowledge, mistakes in procedure, and uncertainty

of memory, but generally did not do so. Testimony is not a “new matter” if it merely

“expands or elaborates on the witness’ previous testimony.” United States v. Blakenship,

(4th Cir. 2017) (cleaned up). Given that Andres has waived the

identification of the new matter by not specifying it in his opening brief and given that, in

any event, one could reasonably conclude that the matter Andres’ identifies in his reply

brief was not new, Andres has not shown an abuse of discretion. See Evans v. Eaton Corp.

Long Term Disability Plan,

(4th Cir. 2008) (“At its immovable core, the

abuse of discretion standard requires a reviewing court to show enough deference to a

primary decision-maker’s judgment that the court does not reverse merely because it would

have come to a different result in the first instance.”).

IV.

Next, Andres contends that there was insufficient proof that the substance at issue

was methamphetamine, given that the testifying experts did not test for the molecular

structure. However, Andres does not provide legal support for the contention that

molecular or other additional testing was required. In fact, we have determined that “lay

testimony and circumstantial evidence may be sufficient, without the introduction of an

expert chemical analysis, to establish the identi[t]y of the substance involved in an alleged

narcotics transaction.” United States v. Dolan,

(4th Cir. 1976) (noting

that such evidence could include the physical appearance of the substance, evidence that

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the substance produced the expected results, the price paid for the substance, and evidence

of secretive transactions); see also United States v. Tinsley,

(4th Cir.

1986) (affirming admission of lay testimony that substance sold by defendant was

methamphetamine).

Here, numerous witnesses testified that Andres had given or sold them

methamphetamine. In addition, two witnesses specifically testified that the substance

Andres gave them produced the effects that they expected from methamphetamine. 1 See

United States v. Scott,

(4th Cir. 1984) (sufficient evidence established that

the substance was cocaine where “all persons dealing with the substance treated and dealt

with it as cocaine”). Further, three experts testified that, after conducting the appropriate

tests, they determined that the substance at issue was methamphetamine. Finally, we have

recognized the appropriateness of the experts’ tests. See United States v. Abbas,

(4th Cir. 1996) (accepting expert testimony that gas chromatography, infrared

spectroscopy, and mass spectroscopy tests “are generally accepted standards” and rejecting

hearsay challenge because expert opinions usually rely on information gathered out of

1 Andres attacks the credibility of the witnesses who were drug users and convicted felons. However, it is the role of the district court to observe witnesses and weigh their credibility. United States v. Palmer,

(4th Cir. 2016). Moreover, as discussed above, when considering the sufficiency of the evidence, we assume all contradictions were resolved in favor of the Government.

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court). As such, there was more than sufficient evidence to prove that the substance at

issue was methamphetamine. 2

V.

Congress initially categorized methamphetamine as a Schedule III substance.

. Congress also delegated authority to the Attorney General to transfer a

particular drug to a more serious schedule if he/she should find that the “substance has a

potential for abuse” and makes the appropriate findings.

(a). In 1971, the

Director of the Bureau of Narcotics and Dangerous Drugs (“BNDD”) transferred

methamphetamine from Schedule III to Schedule II, based on its “high potential for abuse.”

, 12735 (July 7, 1971). In 1974, the Director of the Drug Enforcement

Agency (“DEA”) republished the classification of methamphetamine as a Schedule II drug.

, 22142 (June 20, 1974). Andres argues that Congress lacked the power

to delegate this authority and that, even if the delegation was appropriate, the Attorney

General did not properly exercise such authority by further delegating it and by failing to

make the necessary findings.

Andres concedes that this argument is subject to plain error review. To establish

plain error, Andres “must show that an error (1) was made, (2) is plain . . ., and (3) affects

substantial rights.” United States v. Miller,

, 310 (4th Cir. 2022). Even if he

“makes this three-part showing,” this court “may exercise its discretion to correct the error

2 While Andres could have presented his own evidence that, absent specific molecular testing, the identification of a substance is suspect, he did not.

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only if it seriously affects the fairness, integrity[,] or public reputation of judicial

proceedings.”

.

Andres does not cite to any case law supporting his contentions. Moreover, the

courts that have addressed the issues have disagreed with him. See, e.g., United States v.

Allison,

(5th Cir. 1992) (finding Attorney General’s delegation to BNDD

were proper); United States v. Roark,

(8th Cir. 1991) (holding that

BNDD and DEA made the findings necessary to reschedule methamphetamine); United

States v. Touby,

(3d Cir. 1990) (finding Attorney General has power to

schedule drugs and citing cases); United States v. Barron,

, 1352–53 (10th

Cir. 1979) (finding § 811 to be a constitutional delegation of authority by Congress). As

such, Andres has failed to show error, much less plain error.

VI.

Andres asserts that, given his age, 3 his sentence is tantamount to a life sentence. He

contends that, under the circumstances of his case, a life sentence violates the Eighth

Amendment. The Eighth Amendment prohibits cruel and unusual punishments, a standard

that encompasses both inherently barbaric punishments as well as those that are

disproportionate to the crime committed. Graham v. Florida,

(2010). In

determining whether a sentence is disproportionate to the offense, and thus cruel and

unusual, courts are to consider objective criteria, including the gravity of the offense and

harshness of the penalty, the sentences imposed on other criminals in the same jurisdiction,

3 Andres was born in 1961.

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and the sentences imposed for the same offense in other jurisdictions. United States v.

Dowell,

(4th Cir. 2014). Of the challenges charging that a particular

sentence is disproportionate to the crime committed, there are two types: an as-applied

challenge that the length of a sentence is disproportionate given the circumstances of the

case, and a categorical challenge asserting that an entire class of sentences is

disproportionate based on the nature of the offense or the characteristics of the offender.

In this case, where a party has asserted an as-applied challenge to a particular

sentence, we have outlined a specific method of analysis:

[T]he narrow proportionality principle of the Eighth Amendment does not require strict proportionality between crime and sentence, but forbids only extreme sentences that are grossly disproportionate to the crime. Before an appellate court concludes that a sentence is grossly disproportionate based on an as-applied challenge, the court first must determine that a threshold comparison of the gravity of the offense and the severity of the sentence leads to an inference of gross disproportionality.

United States v. Cobler,

(4th Cir. 2014) (internal quotation marks and

citations omitted); see also United States v. Ross,

(4th Cir. 2023) (finding

functional life sentence for child pornography offenses not grossly disproportionate and

noting the rarity of cases finding gross disproportionality).

We have previously held that a mandatory sentence of life without parole for drug

distribution is not a grossly disproportionate sentence. United States v. Kratsas,

(4th Cir. 1995). In so doing, we emphasized that the defendant’s conduct was

“immensely grave,” noting that the defendant was “part of a ring of distributors,” directly

responsible for “a large amount of cocaine, specifically 18 kilograms,” and a repeat drug

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offender.

Andres received a lighter sentence than the one imposed in Kratsas, but he

too was a distributor of a large amount of illegal substances and a repeat offender.

Consequently, his Eighth Amendment claim fails.

VII.

Andres asserts that his sentence was procedurally unreasonable because the

difference in Guidelines calculations for methamphetamine (actual) as opposed to a

methamphetamine mixture creates unreasonable sentencing disparities. We have already

held that a district court does not abuse its discretion in declining to reject the Ice

Guidelines for policy reasons. See United States v. Williams,

(4th Cir.

2021). In any event, even if Andres’ Guidelines range had been calculated based upon a

methamphetamine mixture, his Guidelines range would not have changed. Accordingly,

we find that Andres’ sentence was procedurally reasonable.

Finally, Andres asserts that his sentence is substantively unreasonable, arguing that,

given his age, health, and offense conduct, the functional life sentence is too lengthy. “A

sentence is substantively unreasonable only where under the totality of the circumstances,

the sentencing court abused its discretion in concluding that the sentence it chose satisfied

the standards set forth in § 3553(a).” United States v. Devine,

, 153 (4th Cir.

2022) (internal quotation marks omitted), cert. denied,

(2023). The district

court must “ensure that the sentence caters to the individual circumstances of a defendant.”

United States v. Howard,

(4th Cir. 2014) (internal quotation marks

omitted). However, “district courts have extremely broad discretion when determining the

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weight to be given each of the § 3553(a) factors.” United States v. Jeffrey,

(4th Cir. 2011).

We presume that a below-Guidelines sentence is substantively reasonable. United

States v. Zelaya,

(4th Cir. 2018). Andres can rebut that presumption

only “by showing that the sentence is unreasonable when measured against the

(a) factors.” United States v. Louthian,

(4th Cir. 2014).

While Andres asserts that a more significant downward variance was needed in this

case, we find that Andres’ arguments are unpersuasive. Andres was an organizer or a

leader of a large methamphetamine conspiracy. He dealt in large quantities of drugs and

possessed numerous firearms. Despite his prior convictions, Andres was not deterred from

his offense conduct, which reflected his lack of respect for the law. The court noted that

Andres had numerous convictions dating back decades for which he received zero criminal

history points. The court considered Andres’ personal circumstances and granted him a

downward variance based on his age, health conditions, and the fact that he chose a bench

trial. Andres’ arguments fail to rebut the presumption that his sentence is substantively

reasonable.

Based on the foregoing, we affirm Andres’ convictions and sentence. We dispense

with oral argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

AFFIRMED

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