United States v. De Rangel , 686 F. App'x 614 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 25, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-5126
(D.C. No. 4:15-CR-00165-JHP-1)
GABRIELA RODRIGUEZ DE RANGEL, (N.D. Okla.)
a/k/a Gabriela Rangel, a/k/a Gabriela
Rodriguez,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, HOLMES, and PHILLIPS, Circuit Judges.
_________________________________
Gabriela Rodriguez De Rangel appeals her conviction for possessing
methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(C) . She argues that the jury was incorrectly instructed regarding constructive
possession. Exercising jurisdiction under 28 U.S.C. §1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,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.
BACKGROUND
On October 4, 2015, Oklahoma Highway Patrol (OHP) troopers stopped
De Rangel’s SUV because of a non-functioning brake light and an improperly displayed
tag. A drug dog subsequently alerted near the rear bumper. When the troopers told
De Rangel they intended to search the SUV, she “panicked” and said “No, but my
boyfriend - - the car - - how do you say - - llanta[?].” R., Vol. II at 126. “Llanta” is the
Spanish word for “tire.” Troopers cut into the SUV’s spare tire and found 875.2 grams of
methamphetamine.
After being arrested, De Rangel told DEA agents that she was traveling to Tulsa
from Phoenix, where she had met “with some guys” who loaded drugs into her tire.
Id. at 119. She expected to be compensated for her trip.
With De Rangel’s consent, Tulsa Police Officers searched her Tulsa home. In her
bedroom, they found digital scales and a baggie containing 25.8 grams of
methamphetamine. She was charged with possessing methamphetamine with intent to
distribute.
At trial, De Rangel provided a different story. She testified that in late September
she drove to Phoenix to shop and to deliver $25,000 (that had been stashed in her SUV’s
spare tire) to her stepdaughter’s boyfriend. According to De Rangel, the boyfriend
planned to use the money to invest in a car dealership and he promised to pay her $5,000.
After De Rangel arrived in Phoenix, some “guys” took the tire, id., Vol. II at 183, and
returned it several days later without paying her. She then drove back to Tulsa, allegedly
unaware that methamphetamine had been placed inside the tire.
2
De Rangel further claimed that after being stopped by troopers, they mistranslated
her statements “[b]ecause [she] would tell [the Spanish-speaking trooper] one thing about
the money and he would [translate] that [into] ‘you went to get drugs.’” Id. at 190. She
also said that many other people lived in her house and that she would not have consented
to the search if she had known drugs were there.
The jury convicted De Rangel as charged, and the court sentenced her to
51 months’ imprisonment.
DISCUSSION
De Rangel contends that her conviction for possession with intent to distribute
must be reversed because of instructional error. She asserts that the jury instruction given
enabled the jury to find that she constructively possessed the methamphetamine in the tire
and in her bedroom simply by “knowingly ha[ving] the power at a given time to exercise
dominion or control over [it].” R., Vol. I at 42.1
1
In larger part, the jury instruction defining actual or constructive possession
stated:
The law recognizes two kinds of possession: actual possession and
constructive possession. A person who knowingly has direct physical
control over an object or thing, at a given time, is then in actual possession
of it.
A person who, although not in actual possession, knowingly has the
power at a given time to exercise dominion or control over an object, either
directly or through another person or persons, is then in constructive
possession of it.
R., Vol. I at 42 (emphasis added).
3
Ordinarily, “[w]e review de novo the jury instructions as a whole and view them
in the context of the entire trial to determine if they accurately state the governing law
and provide the jury with an accurate understanding of the relevant legal standards and
factual issues in the case.” United States v. Vernon, 814 F.3d 1091, 1103 (10th Cir.)
(internal quotation marks omitted), cert. denied, 137 S. Ct. 58 (2016). But since De
Rangel did not object to the constructive-possession instruction, we review only for plain
error. See United States v. LaVallee, 439 F.3d 670, 684 (10th Cir. 2006). Under plain
error review, De Rangel must show that “there is (1) error, (2) that is plain, which (3)
affects substantial rights, and which (4) seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Gonzalez–Huerta, 403 F.3d 727,
732 (10th Cir. 2005) (en banc).
The government concedes that the instruction was erroneous, as it failed to require
an intention to exercise dominion or control, not just the power to do so. See United
States v. Little, 829 F.3d 1177, 1182 (10th Cir. 2016) (observing that the Supreme Court
in Henderson v. United States, 135 S. Ct. 1780 (2015), “held that constructive possession
requires both power to control an object and intent to exercise that control”). The
government also acknowledges that the error alleged here is plain error, as the issue had
been settled by the time De Rangel filed her direct appeal. See United States v. Cordery,
656 F.3d 1103, 1106 (10th Cir. 2011) (noting that an error is plain “where the Supreme
Court or this court has addressed the issue or where the district court’s interpretation was
clearly erroneous,” and that “plain error is measured at the time of appeal” (brackets and
internal quotation marks omitted)).
4
The government’s concessions end, however, after conceding the first and second
prongs of plain error. The government argues that De Rangel fails to establish the third
prong, where she “must show a reasonable probability that, but for the error claimed, the
result of the proceeding would have been different,” id. at 1108 (internal quotation marks
omitted). De Rangel argues that if the jury had been properly instructed she likely would
have been acquitted based on her testimony that “the trip [to Phoenix] was about
transporting money,” and that “she had not been home for seven days prior to the search
[of her house] and did not know about the drugs.” Aplt. Opening Br. at 11. We disagree.
Despite her testimony, the jury found that she had intended to distribute
methamphetamine. As this court recently noted in United States v. Simpson, 845 F.3d
1039, 1060 (10th Cir. 2017), a defendant “could intend to distribute [drugs] only if [s]he
intended to possess [those drugs], for [s]he could not distribute something that [s]he
didn’t have.” In other words, it is nonsensical “to assert that the same jury that found that
[De Rangel] intended to distribute the [drugs] could have simultaneously found that [s]he
did not intend to possess [them].” Id. (brackets and internal quotation marks omitted).
Thus, the erroneous instruction had no effect on the jury’s deliberative process, as the
jury nevertheless determined, in light of the instruction given describing the elements for
5
possession with intent to distribute,2 that De Rangel intended to exercise dominion and
control over the methamphetamine found in her tire and bedroom.
CONCLUSION
We affirm De Rangel’s conviction.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
2
The jury instruction for possessing a controlled substance with intent to
distribute provided:
To find the defendant guilty of this crime you must be convinced
that the government has proved each of the following beyond a reasonable
doubt:
First: the defendant knowingly or intentionally possessed a
controlled substance as charged;
Second: the substance was in fact methamphetamine;
Third: the defendant possessed the substance with the intent to
distribute it.
To “possess with intent to distribute” means to possess with intent to
deliver or transfer possession of a controlled substance to another person,
with or without any financial interest in the transaction.
R., Vol. I at 37.
6