United States v. Martinez , 77 F. App'x 490 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 10 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, Nos. 03-8000, 03-8008, 03-8011
v. (D. Wyoming)
JOSE MARTINEZ, DANIEL (D.C. No. 02-CR-039-J)
RICHARD AROS, and UMBERTO
JURADO-BARAJAS, a/k/a Felix
Francisco Garcia,
Defendants-Appellants.
ORDER AND JUDGMENT *
Before EBEL, HENRY, and HARTZ, Circuit Judges.
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). The case therefore is ordered 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This order and judgment is not binding precedent, except under the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. The 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.
This appeal arises from the joint trial of the three defendants, each of whom
were named in a superseding indictment. We have consolidated their appeals for
the purpose of this disposition. On May 17, 2002, the defendants were charged
with one count of conspiracy to traffic in methamphetamine in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (count I).
1. Mr. Aros and Mr. Martinez
On October 7, 2002, a jury trial commenced as to count I for Daniel Aros
and Jose Martinez. The trial also involved Mr. Jurado-Barajas, and several co-
defendants who are not before us in this appeal.
On October 15, 2002, the jury returned guilty verdicts as to Mr. Aros and
Mr. Martinez on count I. On December 23, 2002, the district court sentenced Mr.
Aros to 188 months’ imprisonment, five years of supervised release, and a special
assessment of $100. Mr. Martinez was likewise sentenced to 188 months’
imprisonment, five years of supervised release, and a special assessment of $100.
2. Mr. Jurado-Barajas
Mr. Jurado-Barajas was also charged with possession of methamphetamine
with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)((A),
and 18 U.S.C. § 2 (aiding and abetting) (count II), and with possession of a
firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. §
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924(c)(1)(A)(i) (count IV). 1 Mr. Jurado-Barajas pleaded guilty to counts I and II
of the superseding indictment and was found guilty at trial of count IV. Mr.
Jurado-Barajas was sentenced to 188 months’ imprisonment on counts I and II, to
be served concurrently, and to a consecutive 60 months imprisonment, a $2,000
fine, and five years of supervised release on count IV.
On appeal, the defendants raise the following issues:
Mr. Aros:
1. the evidence presented at trial was insufficient to connect him
to the charged conspiracy, and the government failed to prove
that he was dependent upon his co-conspirators for his supply
of methamphetamine;
2. the district court erred in failing to sever his case from his co-
conspirators;
Mr. Aros and Mr. Martinez:
3. the district court erred when it admitted various out-of-court
statements into evidence under Fed. R. Evid. 801(d)(2)(E)
because they were not made in furtherance of the conspiracy;
1
The superseding indictment dated May 17, 2002, lists only three counts,
yet the parties indicate that a fourth count was charged, and later dismissed,
against Mr. Jurado-Barajas. Aplts’ App. vol. I, att.1.
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4. the district court erred when it instructed the jury regarding the
amount of methamphetamine involved in the conspiracy as a
whole;
5. the district court’s factual findings regarding the drug amounts
“reasonably foreseeable” to each defendant for sentencing
purposes were “clearly erroneous;”
Mr. Martinez:
6. the district court erred when it enhanced his sentence for
possession of a firearm in connection with a drug offense;
Mr. Jurado-Barajas:
7. the district court clearly erred when it found that he was a
manager/supervisor of a criminal activity involving five or
more participants within the meaning of USSG § 3B1.1(b).
We exercise jurisdiction under 28 U.S.C. § 1291 and affirm the convictions and
sentences of each defendant.
I. BACKGROUND
We recite the relevant facts in the light most favorable to the government
because the jury convicted the defendants. See United States v. Duran, 133 F.3d
1324, 1326 n.1 (10th Cir. 1998). From the early part of 2001 until his arrest in
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early February 2002, Mr. Jurado-Barajas was involved in a substantial
methamphetamine trafficking organization centered in and around Gillette,
Wyoming. During most of this period, Mr. Jurado-Barajas resided in a trailer
house located in the Nepstad Trailer Park in Gillette, although he sometimes used
a separate apartment as well.
When authorities executed search warrants on these residences, they seized
approximately five pounds of methamphetamine, $13,000 in cash, weighing
scales, packaging materials, drug ledgers, and a firearm from his trailer, and
approximately three pounds of methamphetamine, more than $62,000 in cash, and
weighing scales from his apartment. The methamphetamine was contained in
vacuum-type packaging.
Mr. Jurado-Barajas sold methamphetamine to various individuals including
Nadine Decker, Mrs. Decker’s husband, and Stacey Larson. Ms. Larson testified
that the methamphetamine sold by Mr. Jurado-Barajas and later by her, came from
a source in California named “Baltazar.” Baltazar would give the
methamphetamine to co-defendant Hector Lopez and to Mr. Jurado-Barajas while
the three met in Mr. Jurado-Barajas’ trailer in Gillette, Wyoming.
Numerous individuals were involved with the conspiracy. Kirk Buckman,
Mr. Aros’ roommate, testified he received methamphetamine from Mr. Aros on
two occasions. Kenneth Powers testified that he met Mr. Aros in the summer of
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2001 and purchased methamphetamine from him three to four times a week.
Jessica Friesen testified that, during the winter of 2001, she began using and
selling methamphetamine that she had received from Mr. Aros. She also met Mr.
Martinez and saw him with Mr. Aros frequently. She testified that she declined
Mr. Martinez’ requests for her to sell drugs for him, citing her friendship with
Mr. Aros.
Jennifer Dobkins testified that she sold methamphetamine received from
Mr. Aros a couple of times. She testified that Mr. Aros told her he hoped to drive
Mr. Martinez out of business by lowering his prices for methamphetamine.
Upon his arrest, Mr. Aros told authorities that he had distributed
approximately fifteen pounds of methamphetamine in the Gillette area, and at trial
he admitted to supplying Mr. Powers, Ms. Dobkins, and Ms. Friesen with
methamphetamine. He at first denied that Mr. Martinez was his source but on
cross-examination, Mr. Aros admitted Mr. Martinez was his source and that he
was trying to put Mr. Martinez out of business.
II. DISCUSSION
A. Sufficiency of the Evidence as to Mr. Aros’ Involvement in the
Conspiracy
1. Standard of Review
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In considering a challenge to the sufficiency of the evidence, “[w]e review
the entire record in the light most favorable to the government to determine
whether the evidence, both direct and circumstantial, together with the reasonable
inferences to be drawn therefrom, is such that a reasonable jury could find the
defendant guilty beyond a reasonable doubt.” United States v. Angulo-Lopez, 7
F.3d 1506, 1510-11 (10th Cir. 1993) (quoting United States v. Fox, 902 F.2d
1508, 1513 (10th Cir. 1990)); accord United States v. Coleman, 7 F.3d 1500,
1502 (10th Cir. 1993); United States v. Davis, 1 F.3d 1014, 1017 (10th Cir. 1993).
Furthermore, we must “accept the jury's resolution of conflicting evidence and its
assessment of the credibility of witnesses.” Davis, 1 F.3d at 1017.
In a conspiracy prosecution, the government must prove: (1) “two or more
persons agreed to violate the law,” (2) “the defendant knew at least the essential
objectives of the conspiracy,” (3) “the defendant knowingly and voluntarily
became a part of the conspiracy,” and (4) “the co-conspirators were
interdependent.” Davis, 1 F.3d at 1017. The government may prove all of these
elements through direct or circumstantial evidence. Coleman, 7 F.3d at 1503; see
also United States v. Brown, 200 F.3d 700, 708 (10th Cir. 1999) (“Circumstantial
evidence is often the strongest evidence of conspiracy.”).
To establish the element of agreement, the prosecution must show “‘a unity
of purpose or a common design and understanding’ with co-conspirators to
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accomplish one or more of the objects of the conspiracy.” Angulo-Lopez, 7 F.3d
at 1510 (quoting United States v. Kendall, 766 F.2d 1426, 1431 (10th Cir. 1985)).
An agreement may be inferred from “‘frequent contacts’” among the co-
conspirators and “‘their joint appearances at transactions and negotiations.’”
United States v. Evans, 970 F.2d 663, 669 (10th Cir. 1992) (quoting United States
v. Esparsen, 930 F.2d 1461, 1472 (10th Cir. 1991)). However, evidence of
association, casual transactions, or a buyer-seller relationship between a
defendant and other co-conspirators is insufficient. Id.The element of interdependence, a highly fact-sensitive issue, may be
proven by showing that each co-conspirator is dependent upon “‘the operation of
each link in the chain to achieve the common goal’” and “‘intended to act
together for their shared mutual benefit.’” Angulo-Lopez, 7 F.3d at 1510 (quoting
Evans, 970 F.2d at 670, 671). Therefore, “a single conspiracy does not exist
solely because many individuals deal with a common central player; they must be
interconnected in some way.” Evans, 970 F.2d at 670. Moreover, “[t]he
defendant’s participation in or connection to the conspiracy need only be slight,
so long as sufficient evidence exists to establish the defendant’s participation
beyond a reasonable doubt.” United States v. Johnston, 146 F.3d 785, 789 (10th
Cir. 1998).
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2. Analysis
Mr. Aros claims the evidence is insufficient to prove the essential element
of interdependence. He claims the only evidence presented was packaging
material seized from his apartment and hearsay statements from uncharged co-
conspirators.
The evidence at trial indicated that Mr. Aros’ participation in the
conspiracy was dependent upon Mr. Martinez. First, Mr. Aros’ roommate, Kirk
Buckman, testified that during the summer of 2001, Mr. Aros had more cash on
him than usual despite having lost his job. Mr. Martinez soon began visiting the
apartment approximately every other day. After an apparent dispute, Mr.
Martinez did not return often to the apartment. Mr. Buckman stated that he used
and obtained methamphetamine from Mr. Aros, and that he distributed
methamphetamine from that he received from Mr. Aros on two occasions.
Jessica Friesen, who entered a guilty plea in exchange for immunity from
prosecution, testified that she bought methamphetamine from Mr. Aros
approximately every day from October/November 2001 until the end of January
2002, and that in the aggregate she purchased 2.5 to 3 pounds of
methamphetamine from him.
Ms. Friesen also testified that she saw Mr. Aros and Mr. Martinez together
about once a week. She testified that Mr. Martinez asked her twice if she wanted
to sell drugs for him, and each time she said no, because she preferred to go
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“through [Mr. Aros].” Aplt’s App. vol. IV, at 320. Ms. Friesen also testified that
Mr. Aros was going “through” Mr. Martinez, meaning he was obtaining
methamphetamine from Mr. Martinez. She also testified that Mr. Aros stated he
was trying to get better prices from somebody else, and that Mr. Martinez was
“ripping him off.” Id. at 322.
Jennifer Dobkins testified she met Mr. Aros in December 2001. She stated
she sold methamphetamine, which she received from Mr. Aros, a couple of times.
According to her testimony, Mr. Aros retrieved the drugs from a file cabinet next
to his bed. She also testified that Mr. Aros had told her he was trying to take Mr.
Martinez out of business by lowering his prices for methamphetamine.
Stacey Larson, who pleaded guilty to conspiracy to possess with intent to
deliver and to deliver methamphetamine, testified that she had been receiving and
selling methamphetamine for Mr. Jurado-Barajas. She testified regarding several
transactions in which she was contacted by various individuals in which she
delivered methamphetamine from a large bag given to her by Mr. Lopez. She
received cash in return and kept track of the transactions on a ledger.
While Mr. Jurado-Barajas was in Mexico, she updated the ledgers and, at
Mr. Jurado-Barajas’ request, attempted to collect money from various persons,
including Mr. Martinez who “owed money for methamphetamine transactions.”
Id. vol. III, at 172. Ms. Larson testified that she received a call from Mr.
Martinez asking to meet. During their meeting, he asked to purchase
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methamphetamine, and she delivered two ounces to him after he paid her for the
contraband. She also testified that she tried to collect the $6,000 outstanding debt
owed to Mr. Jurado-Barajas from Mr. Martinez without success. See id. at 210
and Ex. 401.
Kenneth Powers, who pleaded guilty to conspiracy to deliver
methamphetamine, testified that he purchased methamphetamine “about every
day” from Mr. Aros. Id. vol. IV, at 332. Mr. Powers testified that he began to
resell the contraband, and over the course of ten months, he bought approximately
two pounds of methamphetamine from Mr. Aros. Mr. Powers also testified that
when he attempted to make a purchase during February 2002, Mr. Aros explained
that his connection “got busted.” Id. at 336. The government notes that Mr.
Jurado-Barajas was arrested on February 6, 2002. Mr. Powers testified that he
bought approximately three pounds from Mr. Aros overall, and that Mr. Aros was
his only source of methamphetamine.
Upon his arrest, Mr. Aros told authorities that he had distributed
approximately fifteen pounds of methamphetamine in the Gillette area, and at trial
that these fifteen pounds came from Mr. Martinez, and that he made $2,000 a
week from selling the drug. Mr. Aros admitted to selling methamphetamine to at
least three people. See Aplt’s App. vol. 5, at 585-86. Authorities seized
packaging with a white residue from Mr. Aros’ bedroom.
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At trial, Mr. Aros testified that he knew Mr. Martinez and Mr. Lopez and
that Mr. Aros and Mr. Martinez had occasionally smoked methamphetamine
together. He admitted to supplying Mr. Powers, Ms. Dobkins, and Ms. Friesen
with methamphetamine, but denied that Mr. Martinez was his source. He testified
his source was Facunda Navarette in Laramie, and that Mr. Navarette supplied
him with two to three pounds of methamphetamine. On cross-examination, Mr.
Aros admitted Mr. Martinez was his source and that he was trying to put Mr.
Martinez out of business. He admitted what he had earlier told the agents, but
indicated that he exaggerated the amounts in hopes of being released by the
authorities.
“The defendant’s participation in or connection to the conspiracy need
only be slight, so long as sufficient evidence exists to establish the defendant’s
participation beyond a reasonable doubt.” United States v. Johnston, 146 F.3d
785, 789 (10th Cir. 1998). Upon review of the record, we conclude that the
evidence from the above witnesses, and from Mr. Aros himself, presented the jury
with sufficient evidence to support its verdict that Mr. Aros was dependent upon
“the operation of each link in the chain to achieve the common goal” and
“intended to act together for their shared mutual benefit.” Angulo-Lopez, 7 F.3d at
1510 (internal quotation marks omitted).
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B. Improper Joinder
Mr. Aros next contends that he was prejudiced by improper joinder He
also maintains that, although he did not move to sever either before or during his
trial, that we should review de novo the court’s refusal to sever sua sponte.
Ordinarily, we would review the denial of a motion to sever for an abuse of
discretion, United States v. Eads, 191 F.3d 1206, 1209 (10th Cir. 1999), but here
we review for plain error. United States v. Torres, 53 F.3d 1129, 1141 (10th Cir.
1995). In order to show plain error in this context, Mr. Aros must demonstrate
that he was so “obvious[ly]” “and substantial[ly]” prejudiced as a result of his
joint trial that the district court should have granted a severance “sua sponte.”
United States v. Iiland, 254 F.3d 1264, 1269 (10th Cir. 2001).
As outlined above, there was ample evidence to support the jury’s findings
that Mr. Aros was involved in drug transactions with both Mr. Martinez and with
the other charged co-conspirators. Because the evidence necessarily overlapped
with the evidence against his co-defendants, joinder was proper. See United
States v. Killip, 819 F.2d 1542, 1547 (10th Cir. 1987) (“Joinder is clearly proper
under Fed. R. Crim. P. 8(b), because the Government alleged that [the defendant]
had ‘participated in the same . . . series of acts or transactions’ as the other
defendants.”) (quoting Fed. R. Crim. P. 8(b)). There was no plain error here.
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C. Admission of the Co-conspirator Statements
Mr. Aros and Mr. Martinez both challenge the district court’s admission
into evidence various statements by co-conspirators. Under Federal Rule of
Evidence 801(d)(2)(E), co-conspirator statements are not considered hearsay and
are thus properly admitted if the district court finds, by a preponderance of the
evidence, that (i) “a conspiracy existed,” (ii) “both the declarant and the
defendant against whom the declaration is offered were members of the
conspiracy,” and (iii) the statement “was made in the course of and in furtherance
of the conspiracy.” United States v. Eads, 191 F.3d 1206, 1210 (10th Cir. 1999)
(internal quotation marks omitted).
Mr. Aros and Mr. Martinez appear to challenge each element. The
challenged testimony included statements from Ms. Dobkins that Mr. Aros told
her he was trying to run co-defendant Mr. Martinez, out of business “by lowering
[Aros’] prices of methamphetamines.” Aplt’s App. vol. IV, at 387. Also
challenged were Ms. Friesen’s statements that Mr. Aros’ source was Mr. Martinez
and that Mr. Aros was considering going to someone other than Mr. Martinez to
get “better prices.” Id. at 322. In addition, Mr. Aros challenges the statement by
Mr. Powers that Mr. Aros had told him that his connection “got busted.” Id. at
336.
Mr. Aros states that the testimony only suggested that Mr. Aros and Mr.
Martinez were at some point competitors, but the statements in no way furthered
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the conspiracy. Prior to the admission of the disputed evidence, the district court
held a hearing, outside the presence of the jury, and found that there was
sufficient evidence of a conspiracy between Mr. Aros and Mr. Martinez and that
the challenged statements were made in furtherance of this conspiracy. As
discussed above, the jury found beyond a reasonable doubt that Mr. Aros and Mr.
Martinez were participants in the conspiracy. The evidence at trial was sufficient
to sustain this verdict. Having reviewed the entire record, we hold that the
district court’s factual findings in this regard were not clearly erroneous and that
it did not abuse its discretion in admitting the challenged statements under
Federal Rule of Evidence 801(d)(2)(E).
Mr. Martinez also asserts that the admission of these statements violated his
Sixth Amendment right to confront witnesses against him by denying him the
ability to confront the witness making the statement. Aplt’s Br. at 9. Because
we hold that the evidence in this case meets the requirements for admission under
Rule 801(d)(2)(E), it also satisfies the requirements of the Confrontation Clause.
See United States v. Molina, 75 F.3d 600, 603 (10th Cir. 1996) (recognizing that
“the requirements for admission of evidence under Federal Rule of Evidence
801(d)(2)(E) are identical to the requirements of the Confrontation Clause, so if
the evidence meets the requirements of Rule 801(d)(2)(E), the evidence is
constitutionally admissible”).
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D. Challenge to Instruction 32
Mr. Martinez and Mr. Aros next challenge that Instruction 32 violated their
right to an individual determination of the evidence regarding drug amounts
reasonable foreseeable to them. 2 “We review de novo a timely challenge to a jury
2
Instruction 32 provided in part as follows:
If you find the defendants guilty of conspiracy to distribute and possession
with the intent to distribute methamphetamine, as charged in Count One of the
Superseding Indictment, then you must also determine the amount of
methamphetamine involved in the conspiracy. The substantive charge of
conspiracy requires the government to prove beyond a reasonable doubt that the
conspiracy involved only a measurable amount of methamphetamine. When, as in
this case, an indictment alleges the conspiracy involved more than a measurable
amount of methamphetamine, the government is required to prove an amount
beyond a reasonable doubt. You do not have to find the exact amount of
methamphetamine involved. The government is required to prove beyond a
reasonable doubt that the conspiracy involved the distribution or possession with
the intent to distribute: (A) 500 grams or more of methamphetamine; or (B) at
least 50 grams but less than 500 grams of methamphetamine; or (C) at least a
measurable amount but less than 50 grams of methamphetamine. On the verdict
form you will be asked to mark which of these amounts you find has been proved
beyond a reasonable doubt. Your finding must be unanimous.
....
Methamphetamine distributed or possessed by other members of the
conspiracy must be reasonably foreseen as a necessary or natural consequence of
the agreement. This does not require proof that each co-conspirator specifically
agreed or knew that an actual amount of methamphetamine would be distributed
or possessed by all members of the conspiracy. But, the government must prove
that the amount of methamphetamine distributed or possessed by other members
of the conspiracy was reasonably foreseeable to a defendant. No defendant is
responsible for the acts of others going beyond the reasonably foreseeable scope
of the conspiracy. If, however, you find that the government has proved beyond a
reasonable doubt a defendant could have reasonably foreseen the
methamphetamine distributed or possessed by other members of the conspiracy,
you are instructed to add those amounts to the amount of methamphetamine you
find, beyond a reasonable doubt, the defendant personally distributed or
(continued...)
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instruction to determine whether, considering the instructions as a whole, the jury
was misled.” United States v. Guidry, 199 F.3d 1150, 1156 (10th Cir. 1999)
(internal citations omitted). We reverse only when we “have substantial doubt that
the jury was fairly guided.” Id. (internal citations omitted).
We agree with the Government’s argument that Instruction 32 was given to
satisfy Apprendi v. New Jersey, 530 U.S. 466 (2000), and did not contravene that
case as Mr. Aros contends. The jury was instructed to make specific findings
regarding the amount of drugs attributable to the conspiracy. But the instruction
also provided that the government must prove that the amount of
methamphetamine distributed or possessed by the conspiracy was an amount that
was reasonably foreseeable to the individual defendant. In addition, any alleged
Apprendi errors did not affect the defendants’ substantial rights: the maximum
sentence either defendant could have received is twenty years (240 months), see
21 U.S.C. § 841(b)(1)C), and sentences falling within the twenty-year maximum
sentence do not require an Apprendi determination as to drug quantity. See
United States v. Wilson, 244 F.3d 1208, 1215 n.4 (“Apprendi is not violated if a
defendant’s sentence falls within the twenty-year maximum sentence of 21 U.S.C.
2
(...continued)
possessed.
Aplt’s App. vol. I, doc. 194, Instr. 32 (emphasis added).
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§ 841(b)(1)(C)” because the jury “need only determine specific quantity if it leads
to sentences beyond the maximum for mere possession.”).
E. Relevant Conduct Determination as to Each Defendant
Mr. Aros and Mr. Martinez each challenge the district court’s calculation of
drug quantity at sentencing. At sentencing, “[t]he government has the burden of
establishing by a preponderance of the evidence the quantity of drugs for which a
defendant is responsible.” United States v. Green, 175 F.3d 822, 836-37 (10th
Cir. 1999). We will uphold the district court’s calculation of drug quantity unless
that calculation is clearly erroneous. Id. at 837.
The Sentencing Guidelines provide that a court may consider relevant
information without regard to its admissibility under the rules of evidence so long
as the information has “sufficient indicia of reliability to support its probable
accuracy.” USSG. § 6A1.3; see also United States v. Fennell, 65 F.3d 812, 813
(10th Cir. 1995) (stating that “reliable hearsay may be used in the determination
of a sentence”). “When the actual drugs underlying a drug quantity determination
are not seized, the trial court may rely upon an estimate to establish the
defendant’s guideline offense level, so long as the information relied upon has
some basis of support in the facts of the particular case, and bears sufficient
indicia of reliability.” United States v. Ruiz-Castro, 92 F.3d 1519, 1534 (10th
Cir. 1996) (internal quotation marks omitted). Thus, if the ledgers introduced
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into evidence and the testimony at trial possess sufficient indicia of reliability, the
district court properly based its estimate of relevant drug quantity on those
sources.
1. Mr. Aros
Based upon the PSR’s relevant conduct determination of at least 5
kilograms but less than 15 kilograms of methamphetamine, Mr. Aros’ guideline
level was 36. He had a criminal history category of I, which set his guideline
range for imprisonment at 188-235 months. The district court sentenced Mr. Aros
to 188 months’ imprisonment, five years of supervised release, and a special
assessment of $100.
Mr. Aros contends that at most the government has shown by a
preponderance of the evidence that he possessed and distributed 2.7 kilograms of
methamphetamine, which would reduce his base level by two points. He also
disputes the district court’s adoption of the PSR without further proof of the
quantities alleged therein.
The district court heard and considered evidence when it determined
relevant conduct. Mr. Aros’ own testimony indicated that: (1) he told law
enforcement agents that he had distributed 15 pounds of methamphetamine; (2)
that Mr. Martinez was his source; and (3) that he was indeed guilty of conspiracy,
just not of this conspiracy. See Rec. vol. V, at 599-602; 628. Clearly the district
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court did not simply adopt the presentence report as its only finding. See United
States v. Yarnell, 129 F.3d 1127, 1137 (10th Cir. 1997). The district court’s
determination of relevant conduct was not in error.
2. Mr. Martinez
Mr. Martinez contends that the district court clearly erred when it found
relevant conduct to support a guideline level of 34. He maintains that the only
evidence produced to show the quantity were two drug ledgers that indicate that
he owed Mr. Jurado-Barajas the sum of $6,000 for between six and twelve ounces
of the drug. See Rec. vol. X, at 84. That quantity would support a sentencing
range of 78-97 months. The district court sentenced Mr. Martinez to 188 months’
imprisonment, five years of supervised release, and a special assessment of $100.
The district court carefully considered the evidence before it. The PSR
determined Mr. Martinez’ relevant conduct involved more than 5 kilograms but
less than 15 kilograms of methamphetamine. Mr. Martinez received a two-level
firearm enhancement that raised his guideline level to 38, and with a criminal
history category of I, his sentencing range was 235-293 months.
The district court did not adopt the PSR, but determined Mr. Martinez’
relevant conduct involved more than 1.5 kilograms. It first considered a drug
ledger from Mr. Jurado-Barajas’ trailer that referred to Mr. Martinez. Mr.
Martinez’ inclusion on the ledger tied him to the amount seized from the trailer,
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which was approximately 1,721.72 grams. The court also concluded that the
evidence at trial proved 400 grams. We hold that the district court’s finding that
Mr. Martinez’ relevant conduct involved more than 1.5 kilograms was appropriate
and was not clear error.
F. Enhancement for Possession of a Firearm under USSG §
2D1.1(b)(1)
Mr. Martinez challenges the court’s finding that there was a temporal and
spatial relationship between the weapon, the drug trafficking activity, and
himself, to support a two-level enhancement of his sentence. We review factual
findings under § 2D1.1(b)(1) for clear error, giving due deference to the
application of the guidelines to the facts. United States v. Pompey, 264 F.3d
1176, 1180 (10th Cir. 2001). “The [enhancement for weapon possession] should
be applied if the weapon was present, unless it is clearly improbable that the
weapon was connected with the offense.” USSG § 2D1.1(b)(1), cmt., n.3.
“The government bears the initial burden of proving possession by a
preponderance of the evidence.” Pompey, 264 F.3d at 1180. This burden may be
satisfied by showing that there is a temporal and spatial relationship between the
weapon, the drug trafficking activity, and the defendant. Id. Once the
government has met its burden, the defendant must show “that it is clearly
improbable the weapon was connected with the offense.” Id. “[T]he focus of §
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2D1.1(b)(1) is whether [defendant] possessed a firearm in connection with the
offense to which he pleaded guilty.” United States v. Dickerson, 195 F.3d 1183,
1188 (10th Cir. 1999).
Mr. Martinez contends that there is no evidence that any drug activity took
place in his apartment where the unloaded Colt .803 semiautomatic pistol was
recovered from the top drawer of a dresser from his bedroom. The government
recovered no drugs, cash, or drug paraphernalia from Mr. Martinez’ apartment.
There is no evidence that the gun was loaded or that any ammunition was seized.
The government points to testimony regarding drug use in the apartment,
and that Mr. Martinez asked Ms. Friesen to sell drugs for him while she was in
the apartment as evidence of temporal and spatial proximity to drug trafficking.
The government also relied upon the presence of a foodsaver sealer in the
apartment, and a plastic baggie that had Mr. Martinez’ fingerprints on it, as
evidence of drug packaging material.
In this case, the government had only to show the Colt .803 was possessed
during, or was discovered in a place where the conspiracy was carried out or
furthered. Indeed, although there was no evidence to show Mr. Martinez carried,
brandished, loaned, accessed, or held the weapon during any drug transaction or
that the weapon was present or nearby, the uncontroverted evidence that he
possessed a dangerous weapon, USSG § 2D1.1(b)(1), during the course of the
conspiracy, overrides. The district court did not err when it determined that he
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possessed it in a location where some of the activities of the drug conspiracy
occurred.
The district court also noted that as an illegal immigrant, Mr. Martinez
should not have had a gun. Aplt’s App. vol. X, at 103. “The only conceivable
reason would be in connection with the activity that was taking place.” Id. The
district court concluded that Mr Martinez did not meet “the threshold to establish
that it’s clearly improbable that the gun had nothing to do with the controlled
substance.” Id. We hold that the district court’s application of USSG §
2D1.1(b)(1) was not clearly erroneous.
G. Mr. Jurado-Barajas’ Challenge to USSG § 3B1.1(b) Enhancement
for His Role as Manager/Supervisor
Mr. Jurado-Barajas raised only one issue on appeal: whether the district
court erred in finding that he was a manager/supervisor of a criminal activity
involving five or more participants within the meaning of USSG § 3B1.1(b).
Under the Sentencing Guidelines, a district court may impose a three-level
increase in a defendant’s offense level where the criminal activity involved five
or more participants and the defendant played a managerial or supervisory role.
USSG § 3B1.1(b). We review the district court’s determination that a defendant
was a manager or supervisor of criminal activity for clear error. United States v.
VanMeter, 278 F.3d 1156, 1166 (10th Cir. 2002).
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We conclude from a review of the record that the district court properly
found that Mr. Jurado-Barajas met the requirements for a three-level increase.
The government showed by a preponderance of the evidence that there were at
least five participants in the drug dealing. Based on the fact that it was Mr.
Jurado-Barajas’ trailer and nearby apartment that were the center of this activity
and that Mr. Jurado-Barajas planned much of the activity, the district court did
not commit clear error in finding that he was a supervisor or manager of the
operation.
III. CONCLUSION
Accordingly, we AFFIRM the convictions and sentences of each defendant
Entered for the Court,
Robert H. Henry
Circuit Judge
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