United States v. Moreira , 333 F. App'x 366 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
June 8, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 07-3303
v. (D. Kan.)
(D.C. No. 2:06-CR-20021-KHV-13)
BAYRON MOREIRA,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HOLMES, MCKAY, and BALDOCK Circuit Judges.
Bayron Moreira pleaded guilty to distribution of methamphetamine and
conspiracy to possess with the intent to distribute methamphetamine, cocaine, and
marijuana. He was sentenced to 151 months’ imprisonment. On appeal, Mr.
Moreira contends that the district court erred in assessing a two level upward
adjustment to his base offense level for possession of a firearm pursuant to U.S.
Sentencing Guidelines Manual (“U.S.S.G.”) § 2D1.1(b)(1); that he was entitled to
a two level reduction for being a minor participant in the conspiracy pursuant to
*
This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
U.S.S.G. § 3B1.2(b); and that his attorney was ineffective in failing to advise him
of the consequences of waiting until the day of trial to plead guilty and in failing
to properly advocate for a minor role reduction at the sentencing hearing and also
in his Anders v. California, 386 U.S. 738 (1967) brief.
Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we
AFFIRM the district court’s judgment, but DENY counsel leave to withdraw.
BACKGROUND
As part of an ongoing investigation of a drug trafficking conspiracy, Drug
Enforcement Administration (“DEA”) agents in Kansas City, Kansas, arranged for
a confidential source to make a controlled purchase of methamphetamine. The
confidential source called Hector Moreira, who told him where to go to make the
purchase. 1 Hector Moreira sent the defendant, Bayron Moreira (“Mr. Moreira”),
to make the drug sale. After observing the transaction, the DEA agents followed
Mr. Moreira to the home of a coconspirator, Alberto Perez-Jacome, at 1814
Bunker Avenue.
Subsequently, Mr. Moreira was arrested at his home in Belton, Missouri.
DEA agents also arrested Hector Moreira and Mr. Perez-Jacome at the Bunker
1
Hector Moreira ultimately was charged with drug trafficking offenses
arising from this investigation and pleaded guilty. He challenged certain aspects
of his sentence on appeal, and we affirmed. See United States v. Moreira, No.
07-3307, 2008 WL 4787157, at *1 (10th Cir. Nov. 4, 2008), cert. denied, 129 S.
Ct. 1600 (2009).
2
Avenue house. The three were the only members of the conspiracy who had not
yet been arrested. As part of the search of the Bunker Avenue house, the agents
found large amounts of drugs and drug paraphernalia. 2
2
Kitchen area 415.7 net grams cocaine hydrochloride (68
percent purity) (found in three plastic bags
on counter)
82.8 net grams of a methamphetamine
hydrochloride mixture, 19 grams of which
was pure (22.9 percent purity) (found in
three plastic bags located on top of stove)
62.7 net grams of a methamphetamine
hydrochloride mixture, 15.6 grams of which
was pure (24.8 percent purity) (found in
three plastic bags located in freezer)
241.2 net grams of marijuana (found in two
plastic bags in drop ceiling)
Two scales (one found on kitchen counter
and one found on cabinet shelf)
North bedroom 20.4 net grams cocaine hydrochloride (85
percent purity) (found under mattress)
South bedroom 245.6 net grams cocaine hydrochloride (94
percent purity) (found on closet shelf)
Approximately 19 kilograms marijuana
(found in several packages and bags)
Family room 1.021 kilograms cocaine hydrochloride (62
percent purity) (found in drop ceiling)
59.5 grams
3,4-Methylenedioxymethamphetamine
Hydrochloride (ecstasy), 7.2 grams of
which was pure (contained in 225 tablets
found in two bags in drop ceiling)
848.1 net grams cocaine hydrochloride (43
percent purity) (found in grocery bag in
(continued...)
3
Additionally, the agents found in a drop ceiling four handguns, an AK-47 assault
rifle, an SKS Norinco assault rifle, various magazines, a large amount of
ammunition, and over $7,000.
Mr. Moreira and twelve codefendants were charged in a twenty-one count
Second Superseding Indictment. Mr. Moreira was named in two counts with: (1)
conspiracy to possess with intent to distribute 50 grams or more of
methamphetamine, 500 grams or more of cocaine, 50 grams or more of
methamphetamine, and a detectable amount of marijuana, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), (b)(1)(B)(ii), (b)(1)(D), 846, and 18 U.S.C. §
2; and (2) distribution of five grams or more of methamphetamine, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii), and 18 U.S.C. § 2. Mr. Moreira waited
until the day of trial before pleading guilty to both counts. Although there was no
plea agreement, the government agreed to recommend a sentence at the low-end
2
(...continued)
drop ceiling)
221 net grams of a methamphetamine
hydrochloride mixture, 50.8 grams of which
was pure (23 percent purity) (found in eight
bags contained within a larger bag found in
drop ceiling)
220.9 net grams of a methamphetamine
hydrochloride mixture, 53 grams of which
was pure (24 percent purity) (found in eight
bags contained within a larger bag found in
drop ceiling)
R., Vol. IV, ¶ 69 at 17-18 (Presentence Report, dated July 16, 2007) [hereinafter
“PSR”].
4
of the applicable Guidelines range.
A presentence report (“PSR”) was prepared. In addition to the controlled
purchase, the PSR noted that a witness told the agents that Mr. Moreira was
“present at drug transactions on several occasions.” PSR, supra, ¶ 76 at 19. On
those occasions, Mr. Moreira was present with two other individuals who
reportedly were Hector Moreira’s “lieutenants.” Id. ¶ 73, at 19 (witness
identifying Kenet Del Cid-Rendon and Edguar Lizardo-Figueroa as “lieutenants”).
Another witness admitted to buying cocaine from Mr. Moreira “a few times.” Id.
¶ 77 at 19. The PSR concluded that Mr. Moreira was accountable for all of the
drugs found in the Bunker Avenue house, the methamphetamine from the
controlled purchase, and, based on the witnesses’ statements, three additional
transactions, each deemed to be of the same quantity and purity as the controlled
purchase.
Mr. Moreira’s base offense level was 34. Mr. Moreira was assessed a two
level upward adjustment for possession of a firearm based on the weapons found
in the Bunker Avenue house pursuant to U.S.S.G. § 2D1.1(b)(1). Mr. Moreira did
not personally possess the firearms. Rather, the PSR noted that the weapons were
possessed by his coconspirators, and it was not “clearly improbable that the
firearms were connected to drug trafficking activities for which Bayron Moriera is
accountable.” Id. ¶ 91 at 22. Mr. Moreira received a two level downward
adjustment for acceptance of responsibility. Based on a total offense level of 34
5
and a criminal history category of I, the recommended Guidelines sentence was
151 to 188 months.
Mr. Moreira filed several objections to the PSR. First, he objected to the
two level upward adjustment for possession of a firearm. Second, he argued that
he should have received a downward adjustment for playing a minor or minimal
role in the offense. Third, he objected to the government’s failure to request that
he receive the third level downward adjustment for acceptance of responsibility
pursuant to U.S.S.G. § 3E1.1(b). Fourth, he claimed he should have received a
two level downward adjustment under the “safety valve” provision of § 5C1.2.
Fifth, he objected to the calculation of the amount of drugs attributable to him.
The PSR author, however, did not find Mr. Moreira’s arguments convincing and
made no changes to the PSR.
At the sentencing hearing, the court considered and overruled all of Mr.
Moreira’s objections. After hearing testimony, the court accepted the findings of
the PSR in full and sentenced Mr. Moreira to 151 months’ imprisonment. This
appeal followed. Finding that there were no nonfrivolous grounds to appeal, Mr.
Moreira’s counsel filed an Anders brief. 3 Mr. Moreira filed a thorough and well-
3
Mr. Moreira’s counsel did not seek leave to withdraw in his Anders
brief. Nor did he file a separate motion to withdraw. However, we assume that it
was counsel’s intention to seek leave to withdraw: surely he would not wish to
continue representation in a case he deemed to be frivolous, and he expressly
filed Mr. Moreira’s brief pursuant to Anders, which specifically contemplates that
(continued...)
6
researched response to the Anders brief (entitled “Memorandum of Law in
Support of Appellant’s Response to Anders Brief” [hereinafter “Aplt. Resp.
Br.”]). 4 And we subsequently ordered and heard oral argument.
DISCUSSION
Under Anders, counsel may request permission to withdraw after counsel
conscientiously examines the record and determines that any appeal would be
wholly frivolous. Anders, 386 U.S. at 744. However, counsel must submit a brief
3
(...continued)
counsel will request to withdraw, Anders, 386 U.S. at 744 (“Of course, if counsel
finds his case to be wholly frivolous . . . he should so advise the court and request
permission to withdraw.”). For the reasons noted below, however, we conclude
that the assumed request of Mr. Moreira’s counsel to withdraw should be denied.
4
In his Anders brief, Mr. Moreira’s counsel presents a challenge to the
district court’s computation of the drug amount attributable to Mr. Moreira,
asserting that the court clearly erred in attributing 29.1 actual grams of
methamphetamine to him in reliance upon the “vague” assertions of a confidential
informant, who had an “expectation of a reward” from the government. Aplt. Op.
Br. at 16-17. However, Mr. Moreira chose not to pursue this argument in his
response brief. We need not determine whether Mr. Moreira has abandoned the
argument. Even if it were properly before us, we would conclude that this
contention is unavailing. The controlled buy from Mr. Moreira provided a
concrete benchmark (i.e., actual narcotics in custody) from which the district
court could extrapolate the drug quantity involved in prior sales for purposes of
the Guidelines and, as the PSR author noted, PSR, supra, ¶ 165, at 36, witnesses
beyond the confidential informant testified to prior sales of narcotics, which could
support the Guidelines drug quantity attributable to Mr. Moreira. See United
States v. Ballard, 16 F.3d 1110, 1115 n.5 (10th Cir. 1994); United States v.
Beaulieu, 893 F.2d 1177, 1180-81 (10th Cir. 1990); cf. United States v. Ortiz, 993
F.2d 204, 207 (10th Cir. 1993) (“The only evidence in the record supporting the
district court’s finding that Defendant distributed ninety-seven kilograms of
marijuana is an out of court statement by a confidential informant.”).
Accordingly, we do not address this contention further.
7
to the client and this court indicating any potential appealable issues based on the
record. Id. The client may then, in response, choose to submit arguments to the
court. Id. If we conclude after full examination of the record that the appeal is
wholly frivolous, we may grant counsel’s request to withdraw. Id. Accordingly,
we would affirm the district court’s judgment. Id.After a thorough and independent review of the record and consideration of
both Mr. Moreira’s response brief and the Anders brief, we conclude that the
frivolousness assessment of Mr. Moreira’s counsel is correct, but only in
substantial part. With the exception of Mr. Moreira’s challenge to the firearm
enhancement, his appellate issues are indeed frivolous and, in somewhat summary
fashion, we reject his contentions. As to the firearm enhancement, however, we
conclude that Mr. Moreira has presented a colorable, nonfrivolous challenge.
Nevertheless, upon careful consideration, we determine that this challenge fails as
well. 5
5
If Mr. Moreira’s appeal was wholly frivolous, we would grant Mr.
Moreira’s counsel leave to withdraw. See United States v. Calderon, 428 F.3d
928, 930 (10th Cir. 2005). However, “[w]here a reviewing court concludes that a
meritorious issue remains in a case in which an Anders motion has been made, the
remedy is for the Court to deny the motion to withdraw or grant the motion and
appoint new counsel.” United States v. Hall, 499 F.3d 152, 156 (2d Cir. 2007)
(per curiam). As detailed infra, we conclude that Mr. Moreira has presented a
nonfrivolous challenge on appeal. Because the issue has been fully briefed by
both parties (which included an exceptional pro se brief from Mr. Moreira
himself), and we have heard oral argument from counsel, we do not believe the
interests of justice and efficient judicial administration would be served by
(continued...)
8
The district court’s “interpretation and application of the Sentencing
Guidelines” is a question of law that is reviewed de novo. United States v.
Dillon, 351 F.3d 1315, 1318 (10th Cir. 2003). We review the sentencing court’s
factual findings for clear error, “giving due deference to the district court’s
application of the guidelines to the facts.” United States v. Wolfe, 435 F.3d 1289,
1295 (10th Cir. 2006) (internal quotation marks omitted). There is clear error
“only if a finding is wholly without factual support in the record, or after
reviewing the evidence, we are definitely and firmly convinced that a mistake has
been made.” United States v. Ivory, 532 F.3d 1095, 1103 (10th Cir. 2008)
(internal quotation marks omitted).
I. Possession of a Firearm Adjustment
Mr. Moreira first alleges that the district court erred by enhancing his base
offense level by two levels for possession of a firearm. Under U.S.S.G. §
2D1.1(b)(1), a two level enhancement is imposed when “a dangerous weapon
(including a firearm) was possessed” in connection with a drug offense. “The
government bears the burden of proving possession by a preponderance of the
evidence.” United States v. Roberts, 980 F.2d 645, 647 (10th Cir. 1992).
5
(...continued)
appointing Mr. Moreira new counsel at this time. We decline to grant Mr.
Moreira’s counsel leave to withdraw. As to any issue deemed to be nonfrivolous,
Mr. Moreira should not be deprived of the assistance of counsel for any further
proceedings in this case, including a possible petition for rehearing.
9
Generally, possession under § 2D1.1(b)(1) is “satisfied by showing mere
proximity to the offense.” United States v. Alexander, 292 F.3d 1226, 1231 (10th
Cir. 2002) (internal quotation marks omitted).
More specifically, “[t]his burden is satisfied when the government
demonstrates that a temporal and spatial relation existed between the weapon, the
drug trafficking activity, and the defendant. Indeed, the government need only
show that the weapon was found in the same location where drugs or drug
paraphernalia are stored.” United States v. Williams, 431 F.3d 1234, 1237 (10th
Cir. 2005) (citation and internal quotation marks omitted). Once the
government’s burden is satisfied, the burden then shifts to the defendant to prove
that “it is clearly improbable that the weapon was connected to the offense.”
United States v. Heckard, 238 F.3d 1222, 1233 (10th Cir. 2001) (internal
quotation marks omitted); see also U.S.S.G. § 2D1.1 cmt. n.3.
A defendant also may be assessed the two level enhancement if the weapon
was possessed by a coconspirator or codefendant. The adjustment applies to all
“relevant conduct,” which includes “all reasonably foreseeable acts and omissions
of others in furtherance of the jointly undertaken criminal activity.” U.S.S.G. §
1B1.3(a)(1)(B). “Together, [U.S.S.G. §§ 2D1.1 and 1B1.3(a)(1)(B)] permit
sentencing courts to attribute to a defendant weapons possessed by his
codefendants if the possession of weapons was known to the defendant or
reasonably foreseeable by him.” United States v. McFarlane, 933 F.2d 898, 899
10
(10th Cir. 1991); see also United States v. Humphrey, 208 F.3d 1190, 1210 (10th
Cir. 2000) (“[I]n a drug conspiracy conviction the [firearm] adjustment should be
applied unless it is clearly improbable that the weapon was connected with the
conspiracy offense.”).
Further, this court has “previously recognized [that] guns are ‘tools of the
trade’ in the distribution of illegal drugs.” United States v. McKissick, 204 F.3d
1282, 1293 (10th Cir. 2000); see also United States v. Nicholson, 983 F.2d 983,
990 (10th Cir. 1993) (“Drug traffickers may carry weapons to protect their
merchandise, their cash receipts, and to intimidate prospective purchasers.”). As
a general principle, “drugs and guns often go together.” United States v. Hishaw,
235 F.3d 565, 573 (10th Cir. 2000) (internal quotation marks omitted).
However, participation in an illegal drug transaction alone, while probative,
is not determinative that a firearm was foreseeable by participating individuals.
See id. (“[W]e acknowledged the general principle that ‘drugs and guns often go
together.’ However, . . . this general principle, standing alone, would not allow a
jury to conclude beyond a reasonable doubt that the defendant . . . was aware
there were firearms [present] . . . .” (alterations and internal quotation marks
omitted)); see also United States v. Cochran, 14 F.3d 1128, 1133 (6th Cir. 1994)
(“We are not willing to indulge the fiction that a firearm’s presence always will
be foreseeable to persons participating in illegal drug transactions.”).
Here, Mr. Moreira does not contest that one of his coconspirators possessed
11
the guns—either Hector Moreira or Mr. Perez-Jacome. Both had keys to the
Bunker Avenue house where the guns were found. He also does not contest that
the guns were possessed in connection with the drug conspiracy. Instead, Mr.
Moreira’s only argument is that the district court clearly erred in determining that
it was reasonably foreseeable to him that his coconspirators possessed weapons.
We find that the district court did not clearly err.
Mr. Moreira’s participation in a large-scale drug conspiracy, coupled with
the large amount of drugs found at the Bunker Avenue house and Mr. Moreira’s
personal connection to the Bunker Avenue house, provided a sufficient basis for
the district court to find that it was reasonably foreseeable to Mr. Moreira that his
coconspirators possessed firearms. Mr. Moreira was directly involved in the drug
conspiracy, selling drugs for Hector Moreira on numerous occasions. Mr.
Moreira, in one instance, after making a drug sale returned to the Bunker Avenue
house where the drugs and firearms were found.
Further, it is clear that the Bunker Avenue house was the focal point of a
large drug-trafficking operation. Indeed, as Mr. Moreira describes it, Bunker
Avenue was a “drug stash house.” Aplt. Resp. Br. at 19. Large amounts of drugs,
drug paraphernalia, and cash were found at the house. And, significantly in light
of Mr. Moreira’s visit to the house, large quantities of drugs were found in plain
view. See PSR, supra, ¶ 69 at 17-18 (noting that drugs were found in the kitchen
area on the counter and on top of the stove).
12
Given Mr. Moreira’s involvement in the conspiracy, presence at the Bunker
Avenue house, knowledge that the house was a drug stash house, and the large
amount of drugs found hidden and in plain view at the house, it was not clearly
erroneous for the district court to find that Mr. Moreira could reasonably foresee
that his coconspirators would possess firearms at the Bunker Avenue house for
the protection of their drugs, drug paraphernalia, and cash receipts. 6 See
Nicholson, 983 F.2d at 990; McKissick, 204 F.3d at 1293; Hishaw, 235 F.3d at
573; cf. United States v. Wade, 318 F.3d 698, 702 (6th Cir. 2003) (“We are
willing to infer that a coconspirator’s firearm possession is foreseeable based
sole[ly] on the quantity of drugs involved only when the quantity of drugs at issue
is so large that the participants would expect others to be carrying protection.”). 7
6
Indeed, the district court heard testimony on this score. A law
enforcement officer who had worked on the investigation of the conspiracy
involving Mr. Moreira testified:
Illegal firearms and narcotics, I find, go hand-in-hand
especially when you’re dealing with individuals that have a
large amount of illegal narcotics. They use firearms to – as
personal protection, to protect the product or the illegal
narcotics, they use it as an intimidation factor in regards to a
possible thwarting, a possible rip-off from a – customers or
other competition and it’s just used in general as an
intimidation factor.
R., Vol. III, Tr. at 11 (Sentencing Tr., dated Oct. 4, 2007) (emphasis added); see
also id. at 13 (officer testifying “in my experience, drugs in large quantities like
this case, there are weapons involved”).
7
In Wade, the Sixth Circuit overturned the defendant’s conviction for
(continued...)
13
7
(...continued)
a firearms offense, concluding that “there was insufficient evidence to find that
Wade should reasonably have foreseen that one of his coconspirators would carry
a firearm.” 318 F.3d at 701. While it should be kept clearly in mind that the
Sixth Circuit reached this foreseeability conclusion—that is, determined that the
government’s forseeability proof was insufficient—under a higher standard than
applies here (i.e., beyond a reasonable doubt), Wade’s analysis is instructive as to
why we reach a different conclusion concerning foreseeability.
Initially, the Wade court stated: “We may infer that a defendant in a drug
conspiracy should have foreseen his coconspirator’s firearm possession, but the
evidence supporting that inference must be more than a mere generalized
presumption that drug transactions involve guns.” Id. at 702. The court then
observed that it was “willing to infer that a coconspirator’s firearm possession is
foreseeable based sole[ly] on the quantity of drugs involved only when the quantity
of drugs at issue is so large that the participants would expect others to be carrying
protection.” Id. (emphasis added). However, the court concluded as to the
defendant that “[a]lthough the $1,100 worth of crack and powder cocaine involved
here is not insubstantial, it is a far cry from the huge quantities involved when we
have found firearm possession to be foreseeable.” Id. Second, the court noted that
it was “willing to look at the degree of the defendant’s involvement in the
conspiracy.” Id. 703. It said “[w]hen evidence shows that the defendant was very
involved or experienced in the drug trade, we can infer that the defendant knew of
the common link between guns and drugs and thus that a coconspirator’s firearm
possession was reasonably foreseeable.” Id. However, the court concluded that no
such inference was appropriate in that case. It noted:
Even if Wade were a major player in this particular
transaction, this transaction was relatively small in comparison
to other cases in which firearm possession has been ruled
foreseeable. The inferences that could be drawn merely from
Wade’s participation in a drug conspiracy, apparently as a
retail dealer for a $1,100 sale, are limited.
Id. at 704. The court said that there was some evidence that could “support an
inference that this was not Wade’s first drug transaction,” but it characterized him
as “a small-time drug dealer” and noted there was no evidence indicating that “he
had a close relationship to any wholesale dealers.” Id.(continued...)
14
II. Mitigating Role Adjustment
Mr. Moreira next argues that the district court erred in denying his motion
7
(...continued)
Wade provides a useful contrast to the facts of this case and explains why
the district court did not clearly err in finding the firearm enhancement to be
appropriate. We begin at a similar starting point as the Wade court. We need not
rely on “a mere generalized presumption that drug transactions involve guns.” Id.
at 702. Unlike Wade, however, the quantity of drugs tied to the conspiracy
involving Mr. Moreira was substantial; one might reasonably conclude that it was
a quantity worth protecting with firearms. E.g., Nicholson, 983 F.2d at 990.
However, there is no need for us to rest our foreseeability conclusion on this basis
alone, as Wade suggests is permissible. Indeed, we expressly eschew reliance on
anything akin to a presumption that a defendant’s participation in a large scale
drug conspiracy per se—at any minimal level or to any minimal degree—renders
his or her coconspirator’s possession of firearms reasonably foreseeable.
Unlike Wade, however, there was ample evidence that Mr. Moreira engaged
in more than one drug transaction. Indeed, as discussed further infra, the district
court expressly concluded that Mr. Moreira’s “role in this [conspiracy] was vital
and significant and he played a substantial role in distributing methamphetamine
to purchasers in the Kansas City area.” R., Vol. III, Tr. at 19. Furthermore, there
was evidence before the district court that Mr. Moreira was present on several
occasions at drug transactions with individuals identified as Hector Moreira’s
“lieutenants.” PSR, supra, ¶¶ 73, 76, at 19. And around the time of Mr. Moreira’s
arrest, he apparently was only one of three active members of the
conspiracy—one of the others was Hector Moreira, the conspiracy’s leader. The
court would not have been unreasonable in inferring, as did the government, that
when the so-called lieutenants and others were arrested, Hector Moreira had to
“resort to other individuals” including Mr. Moreira “to take th[eir] lead.” R., Vol.
III, Tr. at 16-17. Not only do these facts have a bearing on Mr. Moreira’s role in
the offense, as discussed in section II, but they also provide evidence suggesting
that Mr. Moreira had a somewhat “close” business relationship with Hector
Moreira, the drug supplier, such that the “nexus between guns and drugs” in this
case was likely to be reasonably foreseeable. Wade, 318 F.3d at 703, 704. Wade,
therefore, highlights the factors that explain why the circumstances of this case,
unlike those in Wade, militate with some force toward a finding of reasonable
foreseeability and, perhaps more importantly, why the district court did not
clearly err in coming to that conclusion.
15
for a minor participant adjustment. 8 Under U.S.S.G. § 3B1.2(b), a minor
participant in a criminal activity is entitled to a two level reduction in his offense
level. This Guidelines provision is only applicable where there is more than one
participant involved in the offense. U.S.S.G. § 3B1.2 cmt. n.2; United States v.
Salazar-Samaniega, 361 F.3d 1271, 1277 (10th Cir. 2004). A minor participant is
one who “play[ed] a part in committing the offense that makes him substantially
less culpable than the average participant,” but whose role was not minimal.
U.S.S.G. § 3B1.2 cmt. nn. 3(A), 5. A minimal participant is one who is “plainly
among the least culpable of those involved in the conduct of a group.” Id. §
3B1.2 cmt. n.4.
Our inquiry is focused upon “the defendant’s knowledge or lack thereof
concerning the scope and structure of the enterprise,” Salazar-Samaniega, 361
F.3d at 1277 (internal quotation marks omitted), and “the defendant’s culpability
relative to the other participants in [the] offense,” United States v. Williamson, 53
F.3d 1500, 1524 (10th Cir. 1995). See also United States v. Harfst, 168 F.3d 398,
8
At sentencing, Mr. Moreira requested a four level reduction for being
a “minimal participant” pursuant to § 3B1.2(a) and argued, in the alternative, for
a two level reduction for being a “minor participant” pursuant to § 3B1.2(b). Mr.
Moreira’s counsel makes the same argument in his Anders brief. However, Mr.
Moreira’s response to the Anders brief only requests a two level reduction for
being a minor participant. We need not determine here whether Mr. Moreira has
abandoned the minimal participant claim. Because we conclude that Mr. Moreira
does not qualify as a minor participant—a role that requires more involvement
than a minimal participation—the minimal participant argument also would fail.
16
403 (10th Cir. 1999) (acknowledging that “evidence of the relative roles of any
other participants in the criminal activity . . . is required for consideration of a §
3B1.2 adjustment” and that “a sentencing court may consider the underlying
scheme, as opposed to merely the offense of conviction, in determining role in the
offense adjustments” (internal quotation marks omitted)). The “defendant bears
the burden of proving by a preponderance of the evidence whether [the
adjustment] is warranted.” United States v. Martinez, 512 F.3d 1268, 1275 (10th
Cir.), cert. denied, 128 S. Ct. 2461 (2008). The “denial of a minor participant
status represents a finding of fact,” which we review for clear error. Id.Here, the district court did not clearly err in finding that Mr. Moreira did
not prove by a preponderance of the evidence that the minor role adjustment was
warranted. Mr. Moreira does not contest his knowledge of the scope or structure
of the criminal enterprise. He only alleges that he was less culpable than his
codefendants. Mr. Moreira was a drug courier. Couriers, though, are not per se
minor participants. United States v. Ballard, 16 F.3d 1110, 1115 (10th Cir.
1994).
The record shows that Mr. Moreira has on numerous occasions either been
present at or directly executed drug transactions; he was not a one-time
participant. PSR, supra, ¶ 76 at 19 (“[Mr. Keith Middleton] said Bayron Moreira,
Kenet Del Cid-Rendon, and Edguar Lizardo-Figuiroa were present at drug
transactions on several occasions.”); id. ¶ 77 at 19 (“[Kelsey McCarthy] said she
17
purchased cocaine from Bayron Moreira a few times.”); id. ¶ 82 at 20
(“[Confidential source 3] stated that he had purchased from Bayron Moreira on
three to four occasions (excluding April 18, 2006, purchase) . . . .”). Indeed,
there was evidence before the district court that Mr. Moreira was present at drug
transactions on several occasions with individuals identified as Hector Moreira’s
“lieutenants,” id., ¶¶ 73, 76, suggesting that he was more than a low-level drug
courier.
Moreover, following the arrest of those so-called lieutenants—and almost
all of the other members of the conspiracy—it would not have been unreasonable
for the district court to infer, as the government argued, that Hector Moreira had
to “resort to other individuals” including Mr. Moreira “to take th[eir] lead.” R.,
Vol. III, Tr. at 16-17. The district court specifically concluded that Mr. Moreira’s
“role in this [conspiracy] was vital and significant and he played a substantial role
in distributing methamphetamine to purchasers in the Kansas City area.” 9 R.,
9Principally based upon this statement, Mr. Moreira contends that the
district court applied the wrong standard as to who is a minor participant. He
claims that the court improperly relied on the seriousness of his crime, rather than
considering his relative culpability compared to other members of the conspiracy.
However, this argument is without merit. It is clear that the court was properly
focused on Mr. Moreira’s relative culpability. The court pressed Mr. Moreira’s
counsel to explain why he was not “just as involved as all the other people that
were selling drugs for Hector Moreira.” R., Vol. III, Tr. at 16. And, prior to
overruling Mr. Moreira’s objection, the district court remarked that it was Mr.
Moreira’s burden “to show that he’s substantially less culpable than the average
participant.” Id. at 19. Therefore, we are left with no doubt that the court
(continued...)
18
Vol. III, Tr. at 19.
In sum, the record shows that, at the very least, Mr. Moreira’s pattern of
conduct was consistent with the level of participation of the average coconspirator
dealing drugs for Hector Moreira. Accordingly, the district court did not clearly
err in not applying the minor role adjustment.
III. Ineffective Assistance of Counsel
Mr. Moreira lastly contends that his attorney was ineffective in failing to
inform him that by waiting until the day of trial to plead guilty, he would be
ineligible for the third level reduction to his offense level for acceptance of
responsibility under U.S.S.G. § 3E1.1(b) and the “safety valve” provision of
U.S.S.G. § 5C1.2. Mr. Moreira also contends that his attorney was ineffective in
failing to properly advocate for a minor role reduction at the sentencing hearing
and in his Anders brief. However, “[i]neffective assistance of counsel claims
should be brought in collateral proceedings, not on direct appeal. Such claims
brought on direct appeal are presumptively dismissible, and virtually all will be
dismissed.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en
banc). To adequately review an appellant’s ineffective assistance of counsel
claim, “[a] factual record must be developed in and addressed by the district court
9
(...continued)
understood the nature of the role-in-the-offense inquiry; it simply found that Mr.
Moreira did not carry his burden of proof.
19
. . . . Even if evidence is not necessary, at the very least counsel accused of
deficient performance can explain their reasoning and actions, and the district
court can render its opinion on the merits of the claim.” Id. (footnote omitted).
We acknowledged in Galloway that “in rare instances an ineffectiveness of
counsel claim may need no further development prior to review on direct appeal.”
Id. (emphasis added). This is not one of those rare cases, however. The record
here is insufficient to adequately address Mr. Moreira’s claim. Further factual
inquiry is necessary. Accordingly, we dismiss this claim without prejudice to Mr.
Moreira’s pursuing, if otherwise authorized and appropriate, this issue in a
collateral proceeding.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s sentencing
order. Because we have determined that Mr. Moreira’s appeal was not wholly
frivolous, however, we DENY Mr. Moreira’s counsel leave to withdraw pursuant
to Anders. We express no view concerning the appropriateness of the continued
representation based upon considerations other than frivolousness.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
20
United States v. Moriera, 07-3303
McKAY, Circuit Judge, concurring in part and dissenting in part.
I agree with the majority’s resolution of Defendant’s minor-participant and
ineffective-assistance claims. However, as for the U.S.S.G. § 2D1.1(b)(1) firearm
enhancement, it is my view that the courts have improperly abandoned the search
for evidence to support the foreseeability element in favor of a judge-made
presumption that the possession of firearms by co-conspirators should be
reasonably foreseeable to anyone with a non-minimal role in a large-scale drug
conspiracy. I therefore dissent from the majority’s rejection of Defendant’s
challenge to this enhancement.
The majority concludes that Defendant could have reasonably foreseen that
his co-conspirators would possess guns at their drug stash house based on his
“involvement in the conspiracy, presence at the Bunker Avenue house, knowledge
that the house was a drug stash house, and the large amount of drugs found
hidden and in plain view at the house.” (Majority Op. at 12.) However, none of
these facts demonstrate that Defendant knew or should have known of the
firearms hidden in a false ceiling in a house he visited once. While Defendant
had more than minimal involvement in the conspiracy, he was not in the upper
echelon of leadership. Unlike his co-conspirator Hector Moreira, whose sentence
was affirmed by a panel of this court in United States v. Moreira, No. 07-3307,
2008 WL 4787157, at *3 (10th Cir. Nov. 4, 2008), he did not have a supervisory
role over the co-conspirator or co-conspirators who possessed the firearms. And,
while the record supports an inference that Defendant knew the Bunker Avenue
house was a drug stash house and may even have seen drugs at the house on his
one documented visit there, I am unwilling to presume that Defendant should
have foreseen from the mere presence of drugs that guns would also be found
somewhere in the house. Our cases have held that a jury may reasonably infer
that a firearm found in a drug dealer’s possession was possessed by this dealer in
furtherance of a drug trafficking offense because “[d]rug traffickers may carry
weapons to protect their merchandise, their cash receipts, and to intimidate
prospective purchasers.” United States v. Nicholson, 983 F.2d 983, 990 (10th Cir.
1993). However, I would not reason from this generality that weapons will
almost inevitably be found where drugs are located, rendering their presence
reasonably foreseeable to any conspirators who know that their co-conspirators
have stashed drugs somewhere.
Although the majority states that it “expressly eschew[s] reliance on
anything akin to a presumption that a defendant’s participation in a large scale
drug conspiracy per se—at any minimal level or to any minimal degree—renders
his or her co-conspirator’s possession of firearms reasonably foreseeable,”
(Majority Op. at 14-15 n.7), the majority then implicitly relies on a presumption
that a defendant with a non-minimal role in a large-scale drug conspiracy should
reasonably foresee that his co-conspirators will possess firearms. The majority
points to no evidence supporting a finding of foreseeability absent the application
2
of such a presumption. The government presented no evidence that Defendant
was ever present when any co-conspirators mentioned, used, displayed, or carried
any firearms. Indeed, the government presented no evidence that any co-
conspirators ever mentioned, used, displayed, or carried firearms at all. Nor did
the government present evidence that any co-conspirators ever engaged in
violence of any sort. Particularly where there is no evidence that any of
Defendant’s co-conspirators ever engaged in violence, displayed or mentioned
weapons, or otherwise gave Defendant reason to suspect that they possessed
firearms, I would not conclude that Defendant should have foreseen a co-
conspirator’s firearm possession based simply on the fact that his co-conspirators
stashed and distributed large quantities of narcotics. I am not persuaded that
Defendant’s mid-level role in the conspiracy makes such a presumption of
foreseeability permissible. I am unable to see how Defendant’s participation in
multiple non-violent drug transactions should somehow have imparted to him an
awareness that a co-conspirator had firearms.
I am convinced that the government did not meet its burden of showing by
a preponderance of the evidence that the constructive possession of firearms by
one of Defendant’s co-conspirators was reasonably foreseeable to Defendant, and
I would accordingly conclude that the district court’s finding was clearly
erroneous. I therefore dissent from this portion of the majority’s decision.
3