United States v. Juarez ( 2015 )


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  •                                                                  FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS         Tenth Circuit
    April 15, 2015
    FOR THE TENTH CIRCUIT
    _________________________________                Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.                                                           No. 13-6235
    (D.C. No. 5:12-CR-00297-R-1)
    PEDRO JUAREZ,                                                (W.D. Okla.)
    Defendant - Appellant.
    _________________________________
    ORDER AND JUDGMENT*
    _________________________________
    Before BRISCOE, Chief Judge, TYMKOVICH and MORITZ, Circuit Judges.
    _________________________________
    Pedro Juarez appeals his convictions for one count of conspiracy to distribute
    methamphetamine and to possess methamphetamine with intent to distribute in violation
    of 
    21 U.S.C. § 846
     and 
    21 U.S.C. § 841
    (a)(1); seven counts of use of a communication
    facility in furtherance of the conspiracy in violation of 
    21 U.S.C. § 843
    (b); and six counts
    of possession of methamphetamine with intent to distribute in violation of 
    21 U.S.C. § 841
    (a)(1).
    Juarez contends the district court erred in admitting statements of his alleged co-
    conspirators absent independent evidence he conspired with them to distribute
    *
    This order and judgment is not binding precedent, except under the doctrines of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.
    1
    methamphetamine. But we decline to address the admissibility of these statements
    because Juarez fails to specifically challenge any particular statement. Further, Juarez
    challenges the sufficiency of the evidence supporting all 14 of his convictions. Because
    we conclude sufficient evidence supports each of Juarez’s convictions, we affirm.
    BACKGROUND
    Over the course of law enforcement’s year-long investigation into Iran Zamarripa,
    the regional supervisor of an international methamphetamine organization, Pedro Juarez
    purchased thousands of dollars’ worth of methamphetamine from Zamarippa. According
    to Special Agent Casey Cox, Juarez regularly procured one-half ounce to two ounces of
    methamphetamine several times a week, often on credit. Both Cox and Zamarripa
    characterized Juarez’s purchases as inconsistent with personal use. On one occasion,
    Juarez asked Zamarripa to cut him a deal on the price of two ounces of methamphetamine
    so Juarez could make extra profit when he resold it. And despite Juarez’s modest
    wages—he made $15 per hour as a construction worker—Juarez managed to make timely
    payments for his purchases.
    Based on this evidence, the jury convicted Juarez of one count of conspiracy to
    distribute methamphetamine and to possess methamphetamine with intent to distribute;
    seven counts of use of a communication facility; and six counts of possession of
    methamphetamine with intent to distribute. The district court sentenced Juarez to 144
    months in prison, and Juarez appealed.
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    DISCUSSION
    I.     Juarez forfeited his hearsay argument.
    Juarez first argues the district court erred in admitting the statements of his alleged
    co-conspirators absent independent evidence he conspired with them to distribute
    methamphetamine. Juarez characterizes these statements as hearsay.
    Because Juarez fails to identify any specific co-conspirator statements on appeal,
    we decline to reach the issue. See United States v. Thornburgh, 
    645 F.3d 1197
    , 1210
    (10th Cir. 2011) (refusing to address appellant’s challenge to admission of co-conspirator
    statements because appellant neglected to identify any specific statements on appeal;
    failure to identify specific statements prevented court from determining whether
    statements were offered for truth of matters asserted); see also United States v. Lewis,
    
    594 F.3d 1270
    , 1285 (10th Cir. 2010) (declining to examine each record page cited in
    appellant’s brief to determine whether any co-conspirator statements contained therein
    were hearsay and, if so, whether their admission prejudiced appellant).
    II.    The government presented sufficient evidence to support Juarez’s
    convictions.
    Next, Juarez challenges the sufficiency of the evidence to sustain all 14 of his
    convictions. Because Juarez failed to renew his Rule 29 motion for judgment of acquittal
    after presenting evidence on his own behalf, we review for plain error. See United States
    v. Rufai, 
    732 F.3d 1175
    , 1189 (10th Cir. 2013) (discussing effect of failure to renew
    Rule 29 motion at close of evidence).
    Absent sufficient evidence to support it, however, a conviction will almost always
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    satisfy all four plain-error requirements. Thus, reviewing for plain error in this context
    differs little from our de novo review of a properly preserved sufficiency claim. See 
    id.
    (quoting United States v. Duran, 
    133 F.3d 1324
    , 1335 n.9 (10th Cir. 1998)) (concluding
    plain error review and review for sufficient evidence “‘usually amount to largely the
    same exercise’”). Under our sufficiency-of-the-evidence test, we view the evidence in the
    light most favorable to the government and ask whether the evidence—and any
    reasonable inferences to be drawn from it—would allow a reasonable jury to find the
    defendant guilty beyond a reasonable doubt. United States v. Green, 
    435 F.3d 1265
    , 1272
    (10th Cir. 2006).
    A.     Possession of methamphetamine with intent to distribute
    Although Juarez concedes he repeatedly purchased and possessed
    methamphetamine, he challenges his six convictions for possession of methamphetamine
    with intent to distribute, contending the government failed to present sufficient evidence
    of his intent to distribute. According to Juarez, the evidence established only that he
    purchased methamphetamine for personal use.
    But the government points to evidence that is more than sufficient to support
    Juarez’s intent to distribute. For instance, Cox characterized the amount of
    methamphetamine Juarez purchased from Zamarripa—often on credit—as inconsistent
    with personal use, and Zamarripa testified it would have been impossible for Juarez to
    personally use all the methamphetamine he purchased. See United States v. Small, 
    423 F.3d 1164
    , 1184 (10th Cir. 2005) (explaining existence of fronting arrangement strongly
    suggests that individual who receives drugs on credit will redistribute them for profit);
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    United States v. Pulido-Jacobo, 
    377 F.3d 1124
    , 1131 (10th Cir. 2004) (stating jury may
    infer intent to distribute from possession of large quantities of drugs). Moreover, a
    reasonable jury could have inferred Juarez was reselling the methamphetamine because
    his $15-an-hour wages were insufficient to cover his frequent purchases, which
    sometimes exceeded $1,000. Finally, Zamarripa testified Juarez once haggled with him
    over the price of two ounces of methamphetamine because Juarez wanted to increase his
    profit from its imminent resale. We conclude this evidence, when viewed in the light
    most favorable to the government, was sufficient to allow a reasonable jury to convict
    Juarez of possessing methamphetamine with intent to distribute.
    B.     Conspiracy to possess methamphetamine with intent to distribute
    To convict Juarez of conspiracy, the government was required to prove he
    (1) agreed with at least one other person to violate the law; (2) knew of the conspiracy’s
    objectives; and (3) knowingly and voluntarily involved himself in the conspiracy.
    Further, the government was required to demonstrate (4) interdependence between the
    co-conspirators. See United States v. Foy, 
    641 F.3d 455
    , 465 (10th Cir. 2011).
    We have long recognized “that proof of the existence of a buyer-seller
    relationship, without more, is inadequate to tie the buyer to a larger conspiracy.” United
    States v. Watson, 
    594 F.2d 1330
    , 1337 (10th Cir. 1979); see also United States v.
    Patterson, 
    713 F.3d 1237
    , 1245-46 (10th Cir. 2013) (stating one who merely purchases
    drugs from member of conspiracy does not automatically become part of conspiracy).
    Citing this “buyer-seller rule,” Juarez insists the government failed to present sufficient
    evidence to support his conspiracy conviction because it proved only that he purchased
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    methamphetamine from Zamarripa for personal use. See United States v. Ivy, 
    83 F.3d 1266
    , 1285-86 (10th Cir. 1996) (explaining purpose of buyer-seller rule is to “separate
    consumers, who do not plan to redistribute drugs for profit, from street-level, mid-level,
    and other distributors, who do intend to redistribute drugs for profit, thereby furthering
    the objective of the conspiracy”).
    But when viewed in the light most favorable to the government, the evidence we
    discussed above was sufficient to prove Juarez was more than a mere purchaser of
    methamphetamine. Given all the evidence indicating Juarez intended to redistribute the
    methamphetamine he purchased, the buyer-seller rule does not apply. See United States v.
    Bell, 
    154 F.3d 1205
    , 1208 (10th Cir. 1998) (finding evidence of fronting arrangement
    inconsistent with mere buyer-seller relationship); United States v. Howard, 
    966 F.2d 1362
    , 1364-65 (10th Cir. 1992) (reasoning disparity between defendant’s limited
    financial resources and value of crack cocaine he possessed suggested defendant was not
    mere purchaser, but instead was involved in common plan with another to distribute
    crack cocaine).
    Moreover, this evidence was sufficient to prove all four elements of the conspiracy
    charge. See Small, 
    423 F.3d at 1183, 1185
     (noting multiple purchases for resale permit
    inference buyer was aware of and “shared common goals with” conspiracy, and
    reasoning fronting arrangement creates situation of mutual dependence because seller’s
    ability to front drugs depends on receipt of money due); United States v. Nichols, 
    374 F.3d 959
    , 961, 969 (10th Cir. 2004), cert. granted, judgment vacated, 
    543 U.S. 1113
    ,
    opinion reinstated, 
    410 F.3d 1186
     (10th Cir. 2005) (hypothesizing that evidence of
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    fronting arrangement would have allowed reasonable jury to find existence of agreement
    to distribute between defendant and supplier); United States v. Bell, 
    154 F.3d 1205
    , 1208
    (10th Cir. 1998) (stating jury may presume defendant who acts in furtherance of
    conspiracy’s goal is knowing participant).
    Because we conclude the government presented ample evidence establishing
    Juarez was not a mere purchaser of methamphetamine, but rather a knowing, voluntary,
    and integral part of a conspiracy to distribute that drug, we affirm his conspiracy
    conviction.
    C.     Use of a communication facility to facilitate a drug felony
    Finally, Juarez challenges the sufficiency of the evidence supporting his seven
    convictions for use of a communication facility. But he does not dispute that he
    repeatedly ordered methamphetamine by phone. Rather, he premises his challenge solely
    on the alleged lack of evidence establishing his intent to distribute. Because we have
    already concluded the government presented sufficient evidence to allow a reasonable
    jury to conclude Juarez possessed methamphetamine with intent to distribute—and
    indeed conspired to do so—we likewise find the evidence sufficient to support his
    convictions for use of a communication facility to facilitate those crimes.
    CONCLUSION
    Juarez’s multiple sufficiency challenges all hinge on his assertion he purchased
    methamphetamine only for personal use. Viewing the evidence in the light most
    favorable to the government, a reasonable jury could conclude he purchased
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    methamphetamine intending to distribute it as part of a conspiracy. Because sufficient
    evidence supports Juarez’s convictions, we affirm.
    Entered for the Court
    Nancy L. Moritz
    Circuit Judge
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