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United States v. Silcock , 61 F. App'x 528 ( 2003 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    MAR 4 2003
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    No. 01-1549
    v.
    (D.C. No. 99-CR-61-N)
    (D. Colorado)
    ROBERT STEWART SILCOCK,
    Defendant - Appellant.
    ORDER AND JUDGMENT *
    Before EBEL, ALDISERT, ** and HOLLOWAY, Circuit Judges.
    Robert Stewart Silcock appeals to this court challenging his conviction for
    conspiracy to distribute methamphetamine in violation of 
    21 U.S.C. §§ 841
    (a)(1)
    and 846. Because there is sufficient evidence to support Silcock’s conviction, we
    exercise jurisdiction pursuant to 
    28 U.S.C. § 1291
     and affirm. Silcock also
    challenges his sentence, arguing that the district court erred in determining that he
    was more than a minor participant in the conspiracy, and thus that he was not
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. This court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    Honorable Ruggero J. Aldisert, Circuit Judge, United States Court of
    **
    Appeals for the Third Circuit, sitting by designation.
    entitled to an offense level reduction. Because the district court’s conclusion that
    Silcock played more than a minor role is not clearly erroneous, we also affirm his
    sentence.
    I.    BACKGROUND
    Silcock was indicted with eighteen other defendants for a conspiracy to
    distribute methamphetamine in Ouray County, Colorado. Perry Wherley was the
    ringleader of this conspiracy, traveling from Colorado to California on the
    weekends to obtain methamphetamine for distribution. The defendant Silcock, a
    California resident, helped Wherley and others obtain methamphetamine for
    several months in 1998.
    The conspiracy began in 1996 when Wherley and his aunt, Brenda Paul,
    started traveling to California every other weekend to purchase methamphetamine
    for approximately ten regular customers in Ouray County. Because of a falling
    out, Wherley eventually replaced Brenda Paul as his traveling companion with
    Michael Sullings. After Sullings was arrested, Wherley replaced him with a
    friend and customer, Eric Avril.
    In April 1998, Wherley and Avril began traveling to California every few
    weeks to buy methamphetamine. On their first trip, they discovered that
    Wherley’s previous methamphetamine supplier was no longer available. Avril,
    -2-
    however, knew of another supplier in California named “Roy.” To locate Roy,
    Avril recommended that they contact Silcock, who was Avril’s old family friend
    and a fellow methamphetamine user. Upon their arrival at Silcock’s house,
    Silcock called Roy, who came to the house and sold methamphetamine to Wherley
    and Avril. Wherley and Avril left some of the purchased methamphetamine with
    Silcock for his personal use and returned to Colorado.
    This pattern was repeated approximately every three weeks over the next
    four months. Wherley and Avril would drive to California to stay with Silcock.
    They would alert Silcock that they were en route, and Silcock would arrange a
    meeting with Roy or other methamphetamine dealers.
    On each trip, Wherley and Avril purchased two to three ounces of
    methamphetamine, and on their final trip they purchased four ounces. The drug
    transactions occurred at Silcock’s house, and Avril and Wherley always
    compensated Silcock with methamphetamine for his own use. Wherley and Avril
    did not know any other source for methamphetamine in California and depended
    on Silcock to initiate contact with Roy or other dealers.
    After these trips to California ceased in July 1998, Avril continued to
    obtain methamphetamine through Silcock. In August 1998, Avril and some
    friends pooled approximately $1,200 to purchase methamphetamine through
    Silcock. One of the friends, Liz Light, sent the money to Silcock via Federal
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    Express. A few weeks later, federal agents intercepted a phone call between
    Wherley and Avril. Avril reported that he had just talked to “B in Cali” and “it’s
    on its way.” Shortly thereafter Light received a package of methamphetamine and
    delivered some to Avril. A second phone conversation was then intercepted, in
    which Avril told Wherley that “Bob took care of me,” referring to this package of
    methamphetamine.
    Finally, in October and November 1998, law enforcement recorded Avril,
    Silcock, and Wherley discussing suppliers and prices of methamphetamine in
    Ouray County. Silcock discussed the price per ounce of methamphetamine and
    indicated that his sources in California were dwindling.
    On March 25, 1999, Silcock, Wherley, Avril, and sixteen others were
    indicted for conspiracy to possess with intent to distribute methamphetamine. At
    the close of the Government’s case, Silcock moved for a judgment of acquittal.
    The motion was denied by the district court, and Silcock was thereafter convicted
    by the jury and sentenced to 51 months of imprisonment. At the sentencing
    hearing, Silcock requested a two-level reduction pursuant to Sentencing Guideline
    § 3B1.2 based on the minor role he played in the conspiracy. The district court
    denied this request.
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    II.   SUFFICIENCY OF THE EVIDENCE
    Silcock first argues that the evidence was insufficient to support his
    conspiracy conviction. Because we find that a reasonable jury could find
    sufficient evidence to convict, we affirm.
    Silcock moved for a judgment of acquittal at the close of the Government’s
    case. Typically, a defendant must renew this motion at the close of all of the
    evidence to obtain de novo review on appeal. United States v. Lopez, 
    576 F.2d 840
    , 842 (10th Cir. 1978). In this case, however, Silcock did not introduce any
    evidence after making his motion and thus did not need to renew his motion at the
    close of all of the evidence. 
    Id. at 843
    .
    Thus, we review de novo Silcock’s claim that the evidence was insufficient
    to support the jury’s verdict, viewing the evidence and all reasonable inferences
    to be drawn therefrom in the light most favorable to the government. United
    States v. Heckard, 
    238 F.3d 1222
    , 1228 (10th Cir. 2001). The evidence is
    sufficient if any reasonable jury could have found the defendant guilty beyond a
    reasonable doubt. 
    Id.
    To prove a conspiracy in violation of 
    21 U.S.C. § 846
    , the evidence must
    establish: “(1) an agreement with another person to violate the law, (2) knowledge
    of the essential objectives of the conspiracy, (3) knowing and voluntary
    involvement, and (4) interdependence among the alleged conspirators.” United
    -5-
    States v. Carter, 
    130 F.3d 1432
    , 1439 (10th Cir. 1997). Silcock argues that the
    Government’s evidence was insufficient to prove: 1) that Silcock knew the
    essential objectives of the conspiracy and 2) that Silcock was interdependent with
    the other conspirators.
    A.     Essential Objectives of the Conspiracy
    Silcock first argues that the evidence was insufficient to show that he knew
    the essential objectives of the conspiracy. We find, however, that a reasonable
    jury could infer from the evidence that Silcock knew that Wherley and Avril were
    purchasing methamphetamine for distribution in Colorado.
    Silcock knew that two methamphetamine users were driving from Colorado
    to California every few weeks to purchase methamphetamine. He hosted these
    two Colorado residents, one of whom was his long-time friend, overnight in his
    home as many as eight times in four months. He contacted their drug supplier
    each time and hosted the drug transaction in his house. In return, he was
    compensated with some of the purchased methamphetamine. Although there is no
    direct evidence that Silcock knew the specific amounts purchased by Wherley and
    Avril, the jury could infer from the foregoing facts that he knew they were
    purchasing distribution quantities.
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    Silcock argues that even if he had known the amount purchased, such
    knowledge would not establish an inference that Wherley and Avril were
    purchasing methamphetamine for distribution. He contends they were such heavy
    users that they could personally consume two to four ounces over the course of a
    few weeks. Wherley testified, however, that even for a heavy user such as
    himself, one ounce of methamphetamine could be shared among four or five
    people for a week, or sold to ten customers. Thus, a reasonable jury could infer
    that Silcock knew Wherley and Avril were not the exclusive consumers of the
    purchased methamphetamine.
    This inference is bolstered by the fact that Silcock later mailed $1,200 of
    methamphetamine to Avril and his friends in Colorado. Silcock’s later
    conversations with Avril and Wherley regarding the price of methamphetamine
    further indicate that Silcock knew that the drugs purchased by Wherley and Avril
    in California were intended for distribution in Colorado.
    A defendant need not “know all the details or all the members of a
    conspiracy” to sustain a conspiracy conviction. United States v. Caro, 
    965 F.2d 1548
    , 1556 (10th Cir. 1992). The evidence here is sufficient to show that Silcock
    knew Wherley and Avril were purchasing methamphetamine for further
    distribution.
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    B.     Interdependence
    Silcock next argues that the evidence was insufficient to show that he was
    interdependent with the other members of the conspiracy. “A defendant’s
    activities are interdependent if they facilitated the endeavors of other alleged
    conspirators or facilitated the venture as a whole.” Heckard, 
    238 F.3d at 1230
    (internal quotations and citations omitted).
    The evidence shows that Avril, Wherley, and all of their customers were
    dependent on Silcock. Avril and Wherley initially contacted Silcock when they
    discovered they had no source for methamphetamine. They continued to call
    Silcock each and every time they went to California so that he could arrange their
    drug purchases, and they never failed to compensate him for his services. Silcock
    was likewise dependent on the distribution of the drugs in Colorado, because the
    funds raised therefrom facilitated further trips by Wherley and Avril, which
    resulted in greater compensation for Silcock. From these facts, any reasonable
    jury could infer that Silcock “facilitated the endeavors of other alleged
    conspirators or facilitated the venture as a whole.” Heckard, 
    238 F.3d at 1230
    (quotations omitted).
    Because the evidence and inferences therefrom support the jury’s
    conclusion that Silcock knew the essential objectives of the conspiracy and that
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    his activities were interdependent with those of the other conspirators, we affirm
    his conviction.
    III.   MINOR ROLE
    Silcock finally argues that he is entitled to a two-point reduction in his total
    offense level pursuant to Sentencing Guideline § 3B1.2 because of his minor role
    in the conspiracy. Any defendant receiving a reduction under this section must
    have played “a part in committing the offense that makes him substantially less
    culpable than the average participant.” U.S. Sentencing Guidelines Manual
    § 3B1.2, cmt. 3(A) (2001) (emphasis added). A defendant may be designated a
    minor participant when he is “less culpable than most other participants” but his
    “role could not be described as minimal.” Id. cmt. 5.
    The decision to reduce a defendant’s base offense level because of the role
    he played in the crime “involves a determination that is heavily dependent upon
    the facts of the particular case.” U.S. Sentencing Guidelines Manual § 3B1.2,
    cmt. 3(C) (2001). The defendant must prove that he is entitled to the reduction by
    a preponderance of the evidence. United States v. Onheiber, 
    173 F.3d 1254
    , 1258
    (10th Cir. 1999). As with any issue of fact, we review the district court’s
    determination for clear error. 
    Id.
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    The district court denied Silcock’s request for a reduction based on his role
    as a minor participant. It reasoned that Silcock knew that the transactions were
    happening, facilitated the transactions by contacting the supplier each time, and
    was compensated for these services. Thus, it found that Silcock’s role was not
    substantially less culpable than Wherley’s or Avril’s.
    This determination is not clearly erroneous. United States v. Santistevan,
    
    39 F.3d 250
    , 253-54 (10th Cir. 1994) (“We will not disturb a district court’s
    finding of fact unless it is without factual support in the record, or if after
    reviewing the evidence we are left with the definite and firm conviction that a
    mistake has been made.”) (internal quotations and citations omitted). The court
    considered the facts and concluded that Silcock was instrumental to each of the
    drug transactions. Although Silcock was not an actual supplier or distributor of
    the drugs, “[a] defendant is not entitled to a reduction under 3B1.2 simply
    because he is the least culpable among several participants in a jointly undertaken
    criminal enterprise.” United States v. Lockhart, 
    37 F.3d 1451
    , 1455 (10th Cir.
    1994) (emphasis added). He must be substantially less culpable than the average
    participant. U.S. Sentencing Guidelines Manual § 3B1.2, cmt. 3(A) (2001).
    Our cases support the district court’s conclusion that Silcock’s culpability
    was not sufficiently minimal to support an offense level reduction. In Lockhart,
    this court upheld the district court’s refusal to grant the defendant a reduction for
    - 10 -
    being a minor participant. 
    37 F.3d at 1455
    . In that case, the defendant had driven
    a cocaine purchaser to a McDonald’s to buy cocaine. 
    Id. at 1453
    . The evidence
    showed that the defendant knew why he was driving the purchaser to the
    McDonald’s and that he expected some payment from the transaction. 
    Id. at 1455
    . These facts were sufficient to establish that he was not a minor participant
    in the crime, as compared with the cocaine purchaser and the cocaine seller. Id.;
    accord Onheiber, 
    173 F.3d at 1258
     (“[A] defendant is not necessarily entitled to a
    sentence reduction under § 3B1.2 solely because he can show that he was a
    middleman.”) (citing United States v. Donaldson, 
    915 F.2d 612
    , 615 (10th Cir.
    1990)); Santistevan, 
    39 F.3d at 254
     (“Moreover, even if we accepted Mr.
    Santistevan’s argument that he was only a ‘middle man’ who simply facilitated
    drug sales from Medina to third parties, our precedents uniformly reject the
    argument that this fact alone compels the district court to exercise its discretion
    and grant a base offense level reduction under § 3B1.2.”); United States v.
    Ballard, 
    16 F.3d 1110
    , 1115 (10th Cir. 1994) (“[T]his court has refused to adopt a
    per se rule that couriers are minor or minimal participants.”); United States v.
    Garcia, 
    987 F.2d 1459
    , 1461 (10th Cir. 1993) (affirming the denial of a reduction
    for a defendant who asserted he was just a “go-between” who received and filled
    orders for marijuana from his source).
    - 11 -
    Because Silcock’s role in these transactions equals or exceeds those
    described in our previous cases, we cannot find that the district court’s conclusion
    that Silcock played more than a minor role in the conspiracy is clearly erroneous
    and we affirm the sentence.
    For the foregoing reasons, Silcock’s conviction and sentence are affirmed.
    ENTERED FOR THE COURT
    David M. Ebel
    Circuit Judge
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