United States v. Serrato ( 2014 )

  FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 7, 2014
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
__________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 12-8040
EDDIE SERRATO,
Defendant – Appellant.
___________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 12-8041
SOTERO NEGRETE,
Defendant – Appellant.
__________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. Nos. 1:11-CR-00193-NDF-1 and
1:11-CR-00193-NDF-5)
__________________________________
Ronald G. Pretty, Cheyenne, Wyoming for Appellant Eddie Serrato.
James H. Barrett, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, Interim, with him on the briefs), Cheyenne, Wyoming, for Appellant Sotero
Negrete.
Jason M. Conder, Assistant United States Attorney (Christopher A. Crofts, United States
Attorney, with him on the brief), Lander, Wyoming, for Appellee.
__________________________________
Before GORSUCH and BALDOCK, Circuit Judges, and JACKSON, District Judge.
__________________________________
JACKSON, District Judge.
__________________________________
Eddie Serrato and Sotero Negrete are drug dealers. In this case they both were
found guilty of multiple counts related to their involvement in a methamphetamine
trafficking conspiracy centered in Casper, Wyoming. On appeal, Mr. Serrato raises four
challenges to his conviction and sentence: (1) the prosecutor engaged in misconduct that
violated his Fifth and Sixth Amendment rights; (2) there was an unconstitutional variance
between the crime charged (a single conspiracy) and the evidence presented at trial (two
separate conspiracies); (3) the district court abused its discretion in its calculation of his
offense level under the federal sentencing guidelines;1 and (4) the district court erred in
denying his motion to suppress evidence obtained from a traffic stop that constituted an
unconstitutional seizure under the Fourth Amendment. Mr. Negrete raises arguments one
and two above and adds that the evidence was insufficient to support his conviction of
using or carrying a firearm in furtherance of a drug trafficking crime.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

The Honorable R. Brooke Jackson, United States District Judge for the District of
Colorado, sitting by designation.
1
U.S. Sentencing Guidelines Manual (2013) [hereinafter “Guidelines”].
2
I. BACKGROUND
A. Factual Background.
The somewhat complicated story that led to the defendants’ convictions began in
2009 when Wyoming law enforcement began to scrutinize the activities of Mr. Negrete
as a possible distributor of methamphetamine in Casper. During the next two years law
enforcement kept track of Mr. Negrete through physical and video surveillance,
authorized wiretaps, undercover work, controlled buys, and other means. This
investigation revealed that Mr. Negrete was redistributing methamphetamine obtained
from sources in Utah and Washington, namely, Eddie Serrato from Utah and Oscar
Cervantes (who was charged but pleaded guilty in the case) from Washington. We will
leave further discussion of the facts to our discussion below of the issues raised on
appeal.
B. Procedural Background.
On July 22, 2011, Mr. Negrete and Mr. Serrato were charged in a multi-count,
multi-defendant indictment. Both defendants pleaded not guilty. The defendants
subsequently filed various pretrial motions, including a motion to suppress by Mr. Serrato
challenging the constitutionality of an April 6, 2011 traffic stop, which the district court
denied.
The combined trial against Mr. Serrato and Mr. Negrete, conducted between
March 7 and 15, 2012, resulted in Mr. Serrato’s conviction on two counts: conspiracy to
3
possess with intent to distribute and to distribute methamphetamine; and attempt to
possess with intent to distribute and aiding and abetting the distribution of
methamphetamine. Mr. Negrete was convicted on the same two counts plus nine others
including conspiracy to launder money; the use and carrying of a firearm in furtherance
of a drug trafficking crime; distribution of methamphetamine; possession with intent to
distribute methamphetamine; and being a felon in possession of a firearm. He was
acquitted on one count of possession of a firearm in furtherance of a drug trafficking
crime.
The court subsequently held sentencing hearings on May 24, 2012. The
government had filed, prior to the trial, notice of its intent to seek enhanced sentence
penalties pursuant to 21 U.S.C. § 851. The recommended imprisonment range under the
Guidelines for both defendants was 360 months to life in prison. The court sentenced
Mr. Negrete to 360 months and Mr. Serrato to 300 months, each sentence to be followed
by 10 years’ of supervised release, plus fines and special assessments.
II. DISCUSSION
We address in turn the two issues raised by both defendants followed by the two
additional issues raised by Mr. Serrato and the one additional issue raised by Mr.
Negrete.
A. Prosecutor’s Comments.
Both defendants challenge as prosecutorial misconduct two separate remarks made
by government counsel during trial—one in the course of making an objection during the
defendant’s cross-examination of Drug Enforcement Administration Special Agent Ryan
4
Cox (as to which the district court denied a motion for a mistrial), and the other in
counsel’s rebuttal closing argument (as to which the court denied defendants’ objections).
They contend that the misconduct violated their constitutional rights under the Fifth and
Sixth Amendments.
The denial of a motion for a mistrial based upon prosecutorial misconduct is
generally reviewed for abuse of discretion. United States v. Harlow, 444 F.3d 1255,
1265 (10th Cir. 2006); United States v. Gabaldon, 91 F.3d 91, 94 (10th Cir. 1996).
However, we recently held that when a defendant objects to a prosecutor’s remark but
does not move for a mistrial, and the district court erroneously overrules the objection,
our standard of review is whether the error was harmless beyond a reasonable doubt.
United States v. Begay, No. 12-2202, 2013 WL 6671208, at *7 (10th Cir. Dec. 19, 2013)
(citing United States v. Pulido-Jacobo, 377 F.3d 1124, 1134 (10th Cir. 2004). Under
either standard we first consider whether the prosecutor’s conduct was in fact improper.
If so, we examine whether any error committed by the district court in responding to the
misconduct was harmless. In the latter regard we consider “the curative acts of the
district court, the extent of the misconduct, and the role of the misconduct within the case
as a whole.” United States v. Martinez-Nava, 838 F.2d 411, 416 (10th Cir. 1988).
Turning to the first incident, during cross-examination of Special Agent Cox
defense counsel asked whether the government had intercepted phone calls involving Mr.
Serrato other than recordings from jail calls. Special Agent Cox responded that he
believed they did have other such recordings. When defense counsel asked whether
Agent Cox would play the recording, Agent Cox responded “I didn’t prepare it today.”
5
Serrato App. Vol. III at 902. Defense counsel began to respond, “So you just believe --”,
at which point government counsel interrupted with a speaking objection: “Your Honor,
I’m going to object now. Counsel has every bit of discovery. If counsel wants to play a
recording, he can play it. It’s not Mr. Cox’s responsibility to bring the recordings for Mr.
Pretty [Defendant Serrato’s attorney]. He’s got them in discovery.” Id. at 902–03.
Mr. Serrato’s attorney then asked for a sidebar and moved for a mistrial on the
basis that any insinuation that Mr. Serrato needed to put on evidence violated his Fifth
Amendment right to remain silent. Mr. Negrete’s attorney joined in the motion. The
district court denied the motion for a mistrial. After noting that the court understood
government counsel’s comment to mean that “the defendants can access the material and
play it and it wasn’t this witness’ obligation to bring all of the production associated with
this case,” the court indicated that it would instruct the jury, similarly to previous
admonitions, that the defendants “have no burden even to cross-examine witnesses, let
alone to produce or play or put forward evidence of any kind because they have no
burden whatsoever in the case.” Id. at 904.
Both defense lawyers responded that such an instruction would not cure the
violation. Mr. Serrato’s counsel requested, as an alternative if the court denied the
mistrial motion, that the court admonish the government in front of the jury. The court
stood by its ruling, stating that the comment did not rise to the level of admonition or
criticism of counsel. Then, immediately following the sidebar, the court instructed the
jury as follows:
6
I did want to make sure the jury is clearly and well instructed that the
defendants in the case have no burden of proof whatsoever. The entire
burden of proof throughout the entire course of the trial rests on the
shoulders of the Government and that proof is proof beyond a reasonable
doubt. The defendants not only have no obligation or burden to come
forward and testify or tell their side of the story, defense counsel need not
even cross-examine Government witnesses or seek to impeach Government
witnesses. They do so to bring forward evidence and facts that the jury
may consider, but they have no burden of proof whatsoever. And so any
suggestion or inference that the defendants have information that they
should play or if they have it, they should bring it forward is an improper
inference. They have no burden of proof whatsoever. The burden from the
beginning through the entire course of the trial rests on the shoulders of the
Government.
Id. at 905–06.
The second challenged remark occurred during the government’s rebuttal closing
argument. The defense called into question the veracity of the testimony of a confidential
informant that Mr. Negrete had pointed a gun at him. The informant had described the
incident to Special Agent Craig Malone of the Wyoming Division of Criminal
Investigation. Counsel for Mr. Negrete argued that, according to the informant’s
testimony, when the informant reported the incident to Special Agent Malone, he seemed
disinterested. Counsel also commented that after the informant so testified, the
government had not recalled Special Agent Malone to confirm the informant’s testimony
despite the government’s reliance on this “important event.” Serrato App. Vol. III at
988–89. Counsel stated, “[i]f a witness is available and he isn’t recalled for particular
testimony or testimony in general, you can assume the testimony would not be
favorable.” Id. at 989.
7
In his rebuttal, government counsel responded: “If you remember, these defense
counsel had an opportunity to ask Agent Malone whatever they wanted. They never
asked him—” Id. at 1008. Counsel for Mr. Serrato interrupted with an objection. Mr.
Negrete’s counsel immediately joined the objection, stating, “That’s prosecutorial—as
instructed, no defendant has any obligation to present a single piece of evidence or a
single question. We make those decisions. They are our cases, not the Government’s. It
is misconduct to even suggest that to the jury.” Id. The court responded: “Thank you,
Mr. Barrett. I believe I’ve adequately instructed the jury on this subject concerning the
defendants’ obligation. They have no obligation to cross-examine, even cross- examine
to impeach. With that noted, the objection is overruled.” Id.
The government argues that the first comment was not improper because the jury
would have, by virtue of the complexity and length of the trial, understood the process
and purposes of discovery. Additionally, the government argues that both comments,
when viewed in context, did not shift the burden of production and proof. The
government alternatively argues that even if the comments were improper, they
minimally impacted the course of the trial; and that limiting instructions given by the
court cured the impropriety.
We decline to speculate that the jury would have understood the legal process of
discovery so well as to make the first comment completely innocuous. And we agree that
the remarks might have impermissibly suggested that the defendants bore, however
slight, a burden of production. We assume without deciding that the government
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counsel’s comments were improper. Nevertheless, despite the impropriety, we do not
view the comments in a vacuum when determining whether they warrant reversal.
Here, following the sidebar during which defense counsel moved for a mistrial
based upon the first improper remark, the district court immediately and specifically gave
the jury a curative instruction. The instruction was both a general reminder of the parties’
respective burdens (and lack thereof) and a specific, tailored instruction that any
suggestion that the defendants had information that they should play or bring forward
was improper. As such, it amounted to an admonishment of government counsel as well
as a curative instruction. Moreover, “[w]e presume jurors will remain true to their oath
and conscientiously follow the trial court’s instructions.” United States v. Carter, 973
F.2d 1509, 1513 (10th Cir. 1992). In short, we find no abuse of discretion in the district
court’s manner of addressing the comment. The court’s instruction to the jury was also
consistent with later instructions that reiterated the defendants’ right to remain silent, the
burden of proof, and that the arguments and objections of counsel are not evidence.
As for the prosecutor’s comment during his rebuttal argument that the defendants
could have asked Agent Malone questions if they had wanted to, we think—from the
perspective of an appellate court that has the benefit of time and hindsight—that
sustaining the objection rather than overruling it would have been the better course.
Instead of sustaining the objection, the court elected immediately to remind the jury that
the defendants “have no obligation to cross-examine, even cross-examine to impeach.”
We do not view that manner of responding to the objection as an error of constitutional
significance, but even if it were, we would not hesitate to conclude beyond a reasonable
9
doubt, especially in light of the court’s repeated explanation and emphasis on the correct
standard, that the error was harmless.
B. Variance.
The government charged defendants Serrato and Negrete—along with four co-
defendants—with conspiring to possess with intent to distribute, and to distribute, 50
grams or more of actual methamphetamine. Defendants argue that the government failed
to prove at trial the existence of one single conspiracy as charged in the indictment,
resulting in a fatal variance between the charge and the evidence. Rather, defendants
contend, the government only proved two separate but not interdependent conspiracies—
one in each state, with Mr. Serrato as the Utah supplier and Mr. Cervantes as the primary
Washington supplier.
“A variance arises when an indictment charges a single conspiracy but the
evidence presented at trial proves only the existence of multiple conspiracies.” United
States v. Carnagie, 533 F.3d 1231, 1237 (10th Cir. 2008). However, “not every variance
requires reversal.” United States v. Windrix, 405 F.3d 1146, 1153 (10th Cir. 2005). A
“variance is reversible error only if it affects the substantial rights of the accused.”
United States v. Ailsworth, 138 F.3d 843, 848 (10th Cir. 1998).
This Court thus faces two questions. “First, was there sufficient evidence to
support a finding of the single conspiracy charged, or was there a variance? Second, if
there was a variance, was that variance substantially prejudicial to Defendants?”
Windrix, 405 F.3d at 1153.
10
To prove the charged conspiracy, the government bore the burden to show: “(1)
that two or more persons agreed to violate the [methamphetamine trafficking laws], (2)
that the defendant[s] knew at least the essential objectives of the conspiracy, . . . (3) that
the defendant[s] knowingly and voluntarily became a part of it, and (4) that the alleged
coconspirators were interdependent.” Carnagie, 533 F.3d at 1238 (quoting United States
v. Sells, 477 F.3d 1226, 1235 (10th Cir. 2007)). Interdependence requires that a
defendant’s actions “facilitate the endeavors of other alleged coconspirators or facilitate
the venture as a whole.” Id. (quoting United States v. Evans, 970 F.2d 663, 670 (10th
Cir. 1992)). Interdependence also requires “proof that the conspirators intended to act
together for their shared mutual benefit within the scope of the conspiracy charged.”
United States v. Heckard, 238 F.3d 1222, 1231 (10th Cir. 2001) (emphasis in original;
alterations and internal quotation marks omitted).
“Distinguishing between a single, large conspiracy and several smaller
conspiracies is often difficult; we will generally defer to the jury’s determination of the
matter.” United States v. Caldwell, 589 F.3d 1323, 1329 (10th Cir. 2009). Despite this
deference, however, “we may not uphold a conviction obtained by piling inference upon
inference . . . . The evidence supporting the conviction must be substantial and do more
than raise a suspicion of guilt.” Id. (quoting United States v. Anderson, 189 F.3d 1201,
1205 (10th Cir. 1999)).
Here, the government argues that the co-conspirators between both the Utah and
Washington rings shared a common goal in the “criminal objective of selling large
quantities of drugs.” Appellee Br. 28 (citing United States v. Roach, 164 F.3d 403, 412
11
(8th Cir. 1998)). We agree with the defendants that the sale of drugs “is ‘common’ to
every drug conspiracy, large or small, and single or multiple,” Serrato Reply Br. at 2
(emphasis in original). But here there was evidence of more specific overlap among the
participants.
Mr. Serrato (the Utah supplier) and Mr. Cervantes (the Washington supplier) were
aware of each other’s roles in providing methamphetamine to Mr. Negrete. Mr.
Cervantes testified that he delivered methamphetamine to Mr. Negrete in Casper on at
least 15 occasions. He saw Mr. Negrete sell methamphetamine that did not come from
him (Cervantes), and on one occasion he went along when Mr. Negrete collected money
from the sale of methamphetamine that did not come from him. Sometimes he was paid
with money that Mr. Negrete received from selling methamphetamine that did not come
from him. More specifically, Mr. Cervantes testified that he sold methamphetamine that
was supplied to Mr. Negrete by Mr. Serrato. He did acknowledge that he only met Mr.
Serrato one time. On that occasion Mr. Cervantes walked in on Mr. Negrete and Mr.
Serrato at Mr. Negrete’s home and found them discussing drug quantities and prices. Mr.
Cervantes observed several bundles of methamphetamine in the room. Upon discovering
Mr. Cervantes’ presence, Mr. Serrato left the room. Mr. Negrete then told Mr. Cervantes
that his services were no longer needed because Mr. Serrato was his new source. Mr.
Cervantes nevertheless helped Mr. Negrete weigh the methamphetamine that Mr. Serrato
had brought, and he and Mr. Negrete tried (smoked) a sample of it together. Serrato App.
Vol. III at 439-54.
12
These actions, particularly providing assistance to Mr. Negrete in selling
methamphetamine provided by Mr. Serrato, were acts in furtherance of “the shared
objective of distributing drugs received from a common source.” Cf. United States v.
Roach, 164 F.3d 403, 412 (8th Cir. 1998) (holding that the district court did not err by
refusing to give a multiple conspiracy instruction). The defense argues that a single
“gratuitous” act by Mr. Cervantes’ cannot suffice to establish the single conspiracy.
Serrato Reply Br. at 2. We disagree. Even a one-time act will suffice if the “nature and
objectives” of that conduct contributed to the larger conspiracy. United States v.
Hamilton, 587 F.3d 1199, 1209 (10th Cir. 2009) (holding that a “one-time agreement to
assist in a one-time collection of money” was sufficient to establish interdependence
where it “was calculated to, and in fact did (albeit not to the fullest extent), meaningfully
contribute to the success of [the larger] drug operation”).
The evidence before the jury was substantial enough to allow it draw the
conclusion that there existed “an ongoing, facilitative relationship between parties who
were aware of the scope of one another’s activities.” Roach, 164 F.3d at 412. There is
no evidence, as the defense suggests, that this single act was “gratuitous” or driven by
any other motivation than to aid Mr. Negrete’s drug trafficking scheme. Cf. Caldwell,
589 F.3d at 1332 (finding no interdependence where introduction of alleged co-
conspirators was “friendly rather than conspiratorial”).
Accordingly, we find no reason to depart from our general deference to the jury’s
determination in this case. We hold that the evidence was sufficient to support the jury’s
conviction on the single conspiracy as charged. Because there was no improper variance,
13
we do not reach the second question of whether a variance substantially prejudiced the
defendants.
C. Guidelines Calculation.
Mr. Serrato appeals the district court’s calculation of his offense level under the
Guidelines, arguing that a two-level increase for offenses involving the importation of
methamphetamine should not have been applied. We review de novo any legal questions
in a district court’s application of the Guidelines, and we review any relevant factual
findings for clear error, “giving due deference to the district court’s application of the
guidelines to the facts.” United States v. Maestas, 642 F.3d 1315, 1319 (10th Cir. 2011)
(quoting United States v. Doe, 398 F.3d 1254, 1257 (10th Cir. 2005)).
The Revised Presentence Investigation Report (“PSR”) determined that Mr.
Serrato’s base offense level under § 2D1.1(a) of the Guidelines was 38, but that it should
then be increased two levels for the importation of methamphetamine under §
2D1.1(b)(5).2 The PSR also determined that a three-level upward adjustment was
appropriate due to Mr. Serrato’s management role per §3B1.1(b) (manager or supervisor
of criminal activity involving five or more participants), bringing his adjusted offense
level to 43. Serrato App. Vol. II at 128. Mr. Serrato fell within a criminal history
2
The complete section states: “If (A) the offense involved the importation of
amphetamine or methamphetamine or the manufacture of amphetamine or
methamphetamine from listed chemicals that the defendant knew were imported
unlawfully, and (B) the defendant is not subject to an adjustment under § 3B1.2
(Mitigating Role), increase by 2 levels. Guidelines § 2D1.1(b)(5). There is no evidence
of the importation of source chemicals, nor does the mitigating role exception apply.
14
category of III. Id. at 129. The combination of the adjusted offense level 43 and criminal
history category III generated a guideline “range” of a life sentence. Id. at 132.
Mr. Serrato does not dispute the initial base level of 38. And, contrary to the PSR,
the district court found that two levels rather than three would be added for Mr. Serrato’s
role in the conspiracy under Guidelines § 3B1.1(c) (organizer, leader, manager or
supervisor in criminal activity other than described in subsections (a) or (b)). Mr. Serrato
does not, of course, dispute that modification which worked to his benefit. Because of
that modification, the district court determined that the adjusted offense level was 42.
That offense level and Mr. Serrato’s undisputed criminal history category of III generated
a guideline range of 360 months to life imprisonment.
As mentioned, Mr. Serrato does dispute the district court’s inclusion of the two-
level importation increase. But, if that increase were omitted, bringing the offense level
from 42 as determined by the district court down to 40, the guideline range does not
change – it still is 360 months to life. Guidelines, Sentencing Table. In short, whether
the district court erred by applying the two-level importation enhancement makes no
difference to the resulting guideline range.
The district court started at the bottom of the guideline range. Then it determined
that a variance downward to a below-Guidelines sentence of 300 months was appropriate
based on Mr. Serrato’s current age and the court’s view that a below-Guidelines sentence
was sufficient to reduce the likelihood of re-offense at the age Mr. Serrato will have
reached on release. Serrato App. Vol. III at 1080-81.
15
Mr. Serrato suggests in his reply brief that the district court might have made an
even greater downward variance had the importation enhancement not been applied. At
best this is pure speculation, and we are not persuaded. Considering the guideline range
and other relevant sentencing factors separately is entirely appropriate. See, e.g., Gall v.
United States, 552 U.S. 38, 53 (noting that determining the guideline range and then
picking a precise sentence are two separate inquiries). The factors on which the variance
was based remain the same regardless whether the importation enhancement was applied.
We conclude that even if the district court erroneously included the importation
enhancement in its calculation of the offense level—which we neither reach nor decide—
the error would be harmless.3
D. Denial of Motion to Suppress.
Mr. Serrato challenges the district court’s denial of his motion to suppress
evidence obtained from a stop of his vehicle on April 6, 2011. Mr. Serrato argues that the
stop was an unreasonable seizure under the Fourth Amendment.
3
We do note that the only argument that Mr. Serrato develops in his opening brief—that
the importation guideline improperly implements 21 U.S.C. § 865—entirely misses the
mark. That statute concerns smuggling methamphetamine while using facilitated entry
programs. 21 U.S.C. § 865(a), (b). Mr. Serrato was never charged with violating that
statute. There is indeed a guideline, § 2D1.1(b)(6), which provides a two-level increase
for individuals convicted under the statute. But that guideline was not applied here,
perhaps explaining the government’s silence on this argument in its response. We
suspect that the argument might have resulted from confusion in the numbering scheme.
Guideline section § 2D1.1(b)(5), which was applied here, formerly was numbered (b)(4).
Section (b)(6) formerly was (b)(5). In the district court, and in his reply brief on appeal,
Mr. Serrato also argued that the evidence was insufficient to establish his knowledge that
methamphetamine involved in the offense was imported. We need not and do not
address that argument.
16
In reviewing the denial of a motion to suppress, we review the district court’s
factual findings for clear error, and we view the evidence in the light most favorable to
the government. United States v. McHugh, 639 F.3d 1250, 1255 (10th Cir. 2011)
(quoting United States v. Worthon, 520 F.3d 1173, 1178 (10th Cir. 2008)). We review de
novo the ultimate legal determination of whether a seizure was reasonable under the
Fourth Amendment. Id.The Fourth Amendment protects individuals from “unreasonable searches and
seizures.” U.S. Const. amend. IV. In Terry v. Ohio, the Supreme Court established that a
law enforcement officer “may in appropriate circumstances and in an appropriate manner
approach a person for purposes of investigating possibly criminal behavior even though
there is no probable cause to arrest.” 392 U.S. 1, 22 (1968) (internal quotation marks
omitted). Such an investigatory detention “is justified at its inception if the specific and
articulable facts and rational inferences drawn from those facts give rise to a reasonable
suspicion a person has or is committing a crime.” McHugh, 639 F.3d at 1255.
“Reasonable suspicion requires the officer to act on ‘something more than an
inchoate and unparticularized suspicion or hunch.’” United States v. Hauk, 412 F.3d
1179, 1186 (10th Cir. 2005) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)).
Nevertheless, “the level of suspicion required for reasonable suspicion is ‘considerably
less’ than proof by a preponderance of the evidence or that required for probable cause.”
United States v. Lopez, 518 F.3d 790, 799 (10th Cir. 2008) (quoting Sokolow, 490 U.S. at
7). We look to the totality of circumstances to determine whether reasonable suspicion
exists. McHugh, 639 F.3d at 1256.
17
The relevant evidence is not disputed. A friend of Mr. Negrete’s, Mathew
Gerhard, acting as a confidential informant for law enforcement, participated in five
controlled buys of methamphetamine from Mr. Negrete between January 20 and February
8, 2011. On one of these occasions, January 24, 2011, Mr. Gerhard went to Mr.
Negrete’s home to buy methamphetamine and observed that Mr. Serrato was there. Law
enforcement, conducting surveillance of the home, saw Mr. Serrato leave the residence in
a van with Utah license plates and drive to a nearby motel where he registered with a
Utah address.
Skipping ahead, law enforcement learned that a buyer from Iowa was scheduled to
purchase methamphetamine from Mr. Negrete on April 6, 2011. Surveillance video
showed a van with Iowa plates entering Mr. Negrete’s garage on that date. The driver,
Terrence Griffin, later testified that he had been told that someone from Salt Lake City
was bringing methamphetamine, and that he would have to leave for about an hour when
that person arrived. A van with Utah plates did arrive, and Griffin left but saw Mr.
Serrato walk into the home. Surveillance showed that the Utah van replaced the Iowa
van in the garage and left shortly thereafter. Mr. Griffin returned an hour later, found that
Mr. Serrato and his van were gone, but pulled his van into the garage, loaded the
methamphetamine and left. Law enforcement stopped the Utah van shortly after it left
the Negrete residence, identified the driver as Mr. Serrato, and allowed it to leave. Law
18
enforcement also stopped the Iowa van, driven by Terrence Griffin, searched it, and
found the methamphetamine.4
The district court found that law enforcement knew from surveillance that cars,
particularly out-of-state cars, would come to Mr. Negrete’s house for the purpose of
delivering methamphetamine and would park in the garage; and that a delivery of
methamphetamine to be later transported to Iowa was scheduled to occur on
approximately April 6, 2011. Serrato App. Vol. I at 125. On that date law enforcement
observed a Utah vehicle and an Iowa vehicle at Negrete’s house. They stopped the
vehicle with the Utah plates after it left Mr. Negrete’s house to identify the driver whom
they suspected of distributing methamphetamine to Mr. Negrete. The stop lasted
approximately 10 minutes, and the only information that was obtained was the driver’s
(Serrato’s) identification. Id. at 125-56. The district court concluded that “[t]hese facts
establish that law enforcement had a reasonable suspicion of Defendant Serrato’s
involvement with illegal activity when they stopped him on April 6, 2011.” Id. at 126.
The court also found that “the evidence at the hearing established that Mr. Serrato was
pulled over after the law enforcement officer observed him going over the speed limit,
which is a traffic violation [that] alone is sufficient to justify a traffic stop to obtain Mr.
Serrato’s name and license number.” Id.
We conclude, as did the district court, that these facts gave rise to reasonable and
4
Mr. Griffin also described at least three trips with an Iowa source, Master Senthep (also
a co-defendant in this case), to Mr. Negrete’s house in Casper to obtain
methamphetamine.
19
articulable suspicion that Mr. Serrato’s vehicle was involved in drug activity and justified
a traffic stop. See United States v. Chavez, 534 F.3d 1338, 1343 (10th Cir. 2008).
E. Sufficiency of Evidence on Firearm Count Against Mr. Negrete.
Mr. Negrete was charged with three firearms-related counts. He was convicted
on Count Four which charged that between January 1 and May 13, 2011 he knowingly
used and carried a firearm during the commission of a drug trafficking crime (namely,
conspiracy to possess with intent to distribute and distribution of methamphetamine as
charged in Count One) in violation of 18 U.S.C. § 924 (c)(1). He was acquitted on
Count Fifteen which charged that on or about May 13, 2011 he knowingly possessed a
firearm in furtherance of a drug trafficking crime (namely, possession with intent to
distribute methamphetamine as charged in Count Fourteen). But he was convicted on
Count Sixteen which charged that on or about May 13, 2011, having previously been
convicted of a crime punishable by imprisonment for more than one year, he
knowingly possessed a firearm, namely, a Hi-Point 9mm caliber handgun, which had
previously traveled in and affected interstate commerce. Negrete App. Vol. I at 44.
On appeal Mr. Negrete challenges his conviction on Count Four. This count
added 60 months consecutively to what otherwise would have been a sentence to
imprisonment of 300 months. Mr. Negrete challenges the sufficiency of evidence,
arguing that the government did not place a specific firearm into evidence at trial and
thus could not prove that the firearm met the statutory definition of a firearm in 18
U.S.C. § 921(a)(3).
20
We review the sufficiency of evidence de novo. See United States v. Chavis,
461 F.3d 1201, 1207 (10th Cir. 2006). The question for the court is “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also United States v.
Nicholson, 983 F .2d 983, 989 (10th Cir. 1993).
Mr. Negrete was convicted on Count Sixteen (and has not challenged his
conviction) of being a felon in possession of a firearm, specifically, a Hi-Point 9 mm
handgun. The date charged in Count Sixteen, on or about May 13, 2011, is within the
range of dates charged in Count Four. Ms. Cates-Medina, who knew that Mr. Negrete
kept a gun in his car and under his pillow when he slept, and who bought ammunition for
him for the gun, confirmed that a photograph presented by government counsel (Exhibit
327) depicted Mr. Negrete’s gun. Serrato App. Vol. III at 601-06. While executing a
search warrant, officers from the Wyoming Division of Criminal Investigation found the
gun shown in exhibit 327, loaded and ready to fire, underneath the console in Mr.
Negrete’s vehicle. Negrete App. Vol. III at 553-57. It was identified as a Hi-Point 9 mm
handgun and was test-fired at the Wyoming State Crime Lab to confirm that it was in
proper working order. Id. at 558, 562. Ammunition was found in Mr. Negrete’s office.
Id. at 555. Furthermore, the parties stipulated that the Hi-Point handgun which is the
subject of Count Sixteen is a firearm within the meaning of 18 U.S.C. § 921(a)(3)
21
such that it “is designed to expel a projectile by the action of an explosive and is not
an antique firearm.” Negrete App. Vol. I at 213
In addition, several other individuals involved in the drug transactions observed
Mr. Negrete with a firearm, some even being threatened by him: Jesus Camacho
described Mr. Negrete’s brandishing a black pistol that he pulled from his waistband,
Negrete App. Vol. III at 241-42; Mr. Cervantes saw a pistol in Mr. Negrete’s
waistband more than once and testified that Mr. Negrete told him the gun was for
protection against home invasions by people to whom he was selling drugs, id. at 259-
60, 388; Mr. Griffin described a black 9 mm pistol that he thought might have been a
Glock, adding that Mr. Negrete slammed the pistol on his desk and warned that if
Griffin interfered with Mr. Senthep’s income, Negrete would hire a junkie to put a
“bullet in your head,” Serrato App. Vol. III at 378-80; and Mr. Gerhard, who testified
that in February or March of 2011 Mr. Negrete withdrew a 9 mm handgun from a
drawer in his office and pointed it at him, Negrete App. Vol. III at 234-38.5
Viewing this evidence in the light most favorable to the government, we hold
that there was substantial evidence of Mr. Negrete’s guilt. We do not know why a
firearm was not placed in evidence, but that is not the only means of proving the
charge. We are not persuaded that the jury’s determination should be overturned.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
5
The record does not necessarily confirm that each of these firearm sightings was the
same weapon. However, Mr. Negrete has not raised a unanimity argument, and we
therefore do not address it.
22
Appellant’s motion for remand is DENIED.
23