UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4192

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
THADDEUS VIDAL PERALTA, a/k/a Ted, a/k/a Ted the Fed,
Defendant - Appellant.

No. 14-4193

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
AARON ANTHONY LUMPKIN,
Defendant - Appellant.

Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Mark S. Davis, District
Judge. (2:12-cr-00192-MSD-TEM-1; 2:12-cr-00192-MSD-TEM-2)

Submitted:

November 25, 2014

Decided:

January 15, 2015

Before DIAZ and HARRIS, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Nicholas D. Renninger, KOZAK, DAVIS & RENNINGER, PC, Portsmouth,

Virginia; Melinda R. Glaubke, SLIPOW ROBUSTO & KELLAM, PC,
Virginia Beach, Virginia, for Appellants.
Dana J. Boente,
United States Attorney, Christopher J. Van Horne, Special
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
In

this

consolidated

appeal,

Thaddeus

Vidal

Peralta

and Aaron Anthony Lumpkin appeal the district courts judgments

of conviction following a jury trial.

Peralta and Lumpkin were

convicted of conspiracy to distribute and possess with intent to

distribute methamphetamine or a mixture and substance containing
a detectable amount of methamphetamine (the conspiracy count).
21 U.S.C. 841(a)(1), 846 (2012).

The jury found that Peralta

conspired to distribute at least fifty grams of methamphetamine

or at least 500 grams of a mixture and substance containing
methamphetamine, while Lumpkin conspired to distribute at least
five

grams

of

methamphetamine

or

at

least

fifty

mixture and substance containing methamphetamine.

grams

of

The jury also

convicted both Peralta and Lumpkin of possession with intent to

distribute

less

than

fifty

grams

of

mixture

and

containing methamphetamine (the possession count).

substance
21 U.S.C.

841(a)(1), (b)(1)(C) (2012).

Peralta received a sentence of

262

the

months

imprisonment

for

conspiracy

count

and

concurrent 240-month term for the possession count; Lumpkin was

sentenced to concurrent 180-months terms of imprisonment.
Peralta

appeals

his

convictions

and

262-month

sentence, arguing that the convictions were not supported by

sufficient

evidence,

the

district

court

admitted

improper

evidence, and the district court erred at sentencing in applying

3

two Guidelines enhancements and miscalculating the drug quantity

attributable to him.

Lumpkin appeals his sentence, arguing that

the

erred

district

court

in

calculating

the

drug

quantity

attributable to him and applying two Guidelines enhancements.

We affirm.
I.
Peralta
evidence

first

supporting

his

challenges

the

convictions.

sufficiency

We

review

denial of a motion for a judgment of acquittal.

de

of

the

novo

the

Fed. R. Crim.

P. 29; United States v. Hickman, 626 F.3d 756, 762 (4th Cir.
2010).

The

jury

verdict

must

be

sustained

when

there

is

substantial evidence in the record, when viewed in the light

most favorable to the government, to support the conviction.
United

States

v.

Jaensch,

665

F.3d

(internal quotation marks omitted).

evidence

that

reasonable

finder

83,

93

(4th

Cir.

2011)

Substantial evidence is
of

fact

could

accept

as

adequate and sufficient to support a conclusion of a defendants

guilt beyond a reasonable doubt.

Id. (alteration and internal

quotation marks omitted).

In order to establish that Peralta was guilty of the
conspiracy count, the Government was required to demonstrate (1)
an

agreement

between

two

or

more

people

to

distribute

and

possess with intent to distribute ice or methamphetamine, (2)

Peraltas knowledge of the conspiracy, and (3) Peraltas knowing
4

and voluntary participation in the conspiracy.

Hackley,

662

F.3d

671,

678

(4th

Cir.

United States v.

2011).

To

support

Peraltas conviction for the possession count, the Government

was

required

to

prove

(1)

possession

of

the

narcotic

controlled substance, (2) knowledge of the possession, and (3)

intent to distribute the narcotic controlled substance.

United

States v. Randall, 171 F.3d 195, 209 (4th Cir. 1999).

We

conclude

that

Peraltas convictions.
Peralta

entered

into

substantial

evidence

supports

Multiple coconspirators testified that

agreements

with

several

individuals

to

transport methamphetamine from Florida to Virginia between 2005

and

2012.

These

transported
during

several

his

arrival.

witnesses

numerous
Finally,

ounces
trips

further

of

methamphetamine

and

witnesses

indicated

distributed
testified

Peralta

into

the

that

that

Virginia

drug

upon

Lumpkin

his

shipped

methamphetamine from Florida to his mothers house in Virginia,

where Peralta reclaimed it and proceeded to distribute the drug
in Virginia.
Peralta

argues

that

the

witnesses

against

him

were

inherently untrustworthy, as each had a significant incentive to

testify

against

him.

However,

the

jury,

not

the

reviewing

court, weighs the credibility of the evidence and resolves any

conflicts in the evidence presented.

United States v. Beidler,

110 F.3d 1064, 1067 (4th Cir. 1997) (alteration and internal
5

quotation marks omitted).

Moreover, the jury was informed of

these potential biases and each witness was cross-examined on

his or her motivations for testifying.
Next, Peralta argues that the district court admitted
irrelevant
obtained

and

during

prejudicial
a

2008

evidence,

traffic

stop.

including
We

review

firearm,

district

courts evidentiary rulings for abuse of discretion.

See United

States

2008).

v.

district

Benkahla,
court

530

abuses

F.3d

its

300,

discretion

arbitrarily or irrationally.
omitted).

309

(4th
in

Cir.

admitting

evidence

Id. (internal quotation marks

Relevant evidence may be excluded if its probative

value is substantially outweighed by a danger of . . . unfair

prejudice,

confusing

the

issues,

[or]

misleading

the

jury.

Fed. R. Evid. 403.

We discern no abuse of discretion here.

Evidence of

gun possession and ownership is logically relevant in many drug

conspiracies.
Cir. 1999).
witnesses,

United States v. Ward, 171 F.3d 188, 195 (4th

The challenged evidence, as described by various

showed

that

Peralta

and

his

coconspirators

were

traveling between Florida and Virginia during the relevant time

frame.

The

evidence

uncovered

during

the

traffic

stop

was

relevant to show that Peralta was traveling to distribute drugs.

II.
Peralta and Lumpkin raise several challenges to their
sentences.

Both argue that the district court miscalculated the

drug quantities attributable to them and that the district court

erroneously
Peralta

applied

further

three-level

argues

that

the

leadership

district

enhancement.

court

erroneously

applied a two-level dangerous weapon enhancement, while Lumpkin

asserts

that

the

district

court

improperly

applied

an

enhancement for obstruction of justice.

We
applying

review

an

abuse

criminal
of

sentences

discretion

standard.

States, 552 U.S. 38, 51 (2007).

ensure

that

the

district

for

reasonableness,
Gall

v.

United

In so doing, we must first

court

committed

no

significant

procedural error, such as failing to calculate or improperly

calculating

the

advisory

Sentencing

Guidelines

selecting a sentence based on clearly erroneous facts.

Peralta
quantities

and

attributed

Lumpkin
to

them

first
for

challenge

Guidelines

range

or

Id.
the

drug

purposes.

We

review the district courts calculation of the quantity of drugs

attributable to a defendant for sentencing purposes for clear
error.

United States v. Slade, 631 F.3d 185, 188 (4th Cir.

2011) (internal quotation marks omitted).

we

are

left

with

the

definite

mistake has been committed.

and

Clear error occurs if

firm

conviction

that

United States v. Jeffers, 570 F.3d

7

557, 570 (4th Cir. 2009) (internal quotation marks omitted).

In

calculating drug amounts, the district court may consider [any]

relevant information . . . , provided that the information has
sufficient
accuracy.

indicia

of

reliability

to

support

its

probable

United States v. Crawford, 734 F.3d 339, 342 (4th

Cir. 2013), cert. denied, 134 S. Ct. 1528 (2014); see also U.S.
Sentencing Guidelines Manual (USSG) 6A1.3(a).

This Court

will afford the district court broad discretion in determining

what information to credit in making its calculations.

United

States v. Stewart, 256 F.3d 231, 253 n.18 (4th Cir. 2001).
We discern no clear error in the district courts drug
quantity calculations.

Peralta and Lumpkin both assert that the

testimony relied upon by the court is unreliable.

In reviewing

the district courts factual determinations, however, we must

give due regard to the opportunity of the district court to
judge

the

credibility

of

the

witnesses.

United

States

v.

Uwaeme, 975 F.2d 1016, 1018 (4th Cir. 1992) (citing 18 U.S.C.
3742(e)

(1988))

(internal

quotation

marks

omitted).

The

district court, having presided over the joint trial, observed

the testimony of each witness.

When ruling on Peraltas and

Lumpkins challenges to the drug quantities, the court carefully

reviewed

each

contested

paragraph,

comparing

the

weight

attributed in the presentence reports to the testimony at trial,

and sustained the objections as to several quantities where the

amounts differed.
Peralta
courts
The

and

application

district

Lumpkin

of

courts

next

challenge

three-level

imposition

of

the

leadership
a

role

district

enhancement.

adjustment

is

factual determination reviewed for clear error.

United States

v. Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009).

A three-level

enhancement under USSG 3B1.1(b) is warranted if the defendant

was a manager or supervisor (but not an organizer or leader) and
the criminal activity involved five or more participants.

The

enhancement is appropriate where the evidence demonstrates that

the defendant controlled the activities of other participants
or

exercised

management

responsibility.

United

States

v.

Slade, 631 F.3d 185, 190 (4th Cir. 2011) (quoting United States
v.

Bartley,

230

F.3d

667,

673-74

(4th

Cir.

2000)).

In

determining whether a 3B1.1(b) enhancement is warranted, a

court should consider:
(1) the exercise of decision making authority, (2) the
nature of participation in the commission of the
offense, (3) the recruitment of accomplices, (4) the
claimed right to a larger share of the fruits of the
crime, (5) the degree of participation in planning or
organizing the offense, (6) the nature and scope of
the illegal activity, and (7) the degree of control
and authority exercised over others.
Kellam,

568

F.3d

at

148

(quoting

USSG

3B1.1,

cmt.

n.4).

Leadership over only one other participant is sufficient as

long as there is some control exercised.

United States v.

Rashwan, 328 F.3d 160, 166 (4th Cir. 2003).

We conclude that the district court did not clearly
err in applying the leadership enhancement.
trial

established

that

Peralta

distributed

The evidence at
methamphetamine

to

coconspirators for redistribution; facilitated and arranged drug

transactions

between

various

coconspirators;

and

coconspirators to transfer money via prepaid cards.

directed
Likewise,

Lumpkin exercised control over another coconspirator, directing

this coconspirator to travel to Virginia to distribute the drugs
and to transfer the proceeds of the sales via prepaid cards.
Next, Peralta argues that the district court erred in
applying a two-level enhancement for possession of a dangerous
weapon.

Section

district

court

dangerous

weapon

2D1.1(b)(1)

to

apply

of

the

two-level

(including

firearm)

Guidelines
enhancement
was

directs

[i]f

possessed.

The

enhancement is proper when the weapon at issue was possessed in

connection with drug activity that was part of the same course
of

conduct

or

common

scheme

as

the

offense

of

conviction.

United States v. Manigan, 592 F.3d 621, 628-29 (4th Cir. 2010)
(internal quotation marks omitted).

The defendant bears the

burden to show that a connection between his possession of a

firearm

and

his

narcotics

offense

is

clearly

improbable.

United States v. Harris, 128 F.3d 850, 852-53 (4th Cir. 1997).
10

We conclude that the enhancement was properly applied.

Testimony

at

trial

established

that

the

traffic

stop

during

which the gun was found occurred while Peralta was returning to
Florida from distributing methamphetamine in Virginia.

Peralta

was

of

the

the

two

the

driver

vehicle.

and

Although

his

mother

Peralta

the

registered

speculates

that

owner

one

of

passengers could have placed the weapon under the hood without
his knowledge, he has failed to offer any evidence to refute the
information contained in the presentence report.
Finally, Lumpkin argues that the district court erred
in applying the USSG 3C1.1 obstruction-of-justice enhancement
based on his testimony at trial.

We review the imposition of

this enhancement for clear error.

United States v. Hughes, 401

F.3d 540, 560 (4th Cir. 2005).

The commission of perjury -

willfully giving false testimony concerning a material matter is a proper ground on which to base the enhancement.

United

States v. Dunnigan, 507 U.S. 87, 95-96 (1993).

There are three

elements

enhancement

necessary

to

justice

impose
based

a
on

two-level
the

defendant's

for

obstruction

of

perjurious

testimony:

the sentencing court must find that the defendant

(1) gave false testimony; (2) concerning a material matter; (3)

with willful intent to deceive. . . .

United States v. Perez,

661 F.3d 189, 192 (4th Cir. 2011) (quoting United States v.
Jones, 308 F.3d 425, 428 n.2 (4th Cir. 2002)).
11

We

discern

no

clear

error

application of the enhancement.

involvement

in

methamphetamine

Florida

to

the

district

courts

At trial, Lumpkin denied any

transportation

from

in

and

distribution

Virginia;

this

directly contradicted by other witnesses at trial.

of

testimony

was

The district

courts conclusion that Lumpkins testimony concerned a material

matter and was made with the willful intent to deceive was not
clearly erroneous.
III.
Accordingly, we affirm the district courts judgments.
We

dispense

with

oral

argument

because

the

facts

and

legal

contentions are adequately presented in the material before this

court and argument will not aid the decisional process.
AFFIRMED

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