United States v. Fredy Parra-Chavez , 198 F. App'x 898 ( 2006 )


Menu:
  •                                                          [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT            FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 06-10350                   OCTOBER 2, 2006
    Non-Argument Calendar             THOMAS K. KAHN
    CLERK
    ________________________
    D. C. Docket No. 05-00220-CR-01-ODE-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    FREDY PARRA-CHAVEZ,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    _________________________
    (October 2, 2006)
    Before BLACK, BARKETT and PRYOR, Circuit Judges.
    PER CURIAM:
    A jury convicted Fredy Parra-Chavez for: (1) conspiring to possess with
    intent to distribute at least 50 grams of methamphetamine; and (2) attempting to
    possess with intent to distribute at least 50 grams of methamphetamine. 
    21 U.S.C. §§ 841
    (a)(1), (b)(1)(A), 846. Parra-Chavez argues that the district court
    erroneously denied a judgment of acquittal and clearly erred in imposing an
    unreasonable 235-month sentence. We affirm.
    I. BACKGROUND
    On April 11, 2005, federal agents received a tip that a private plane landing
    at Hartsfield Airport carried narcotics. Upon searching the plane with the consent
    of its only passenger, Arturo Ochoa-Gonzalez, the agents found 13 pounds of
    methamphetamine with a street value of approximately $91,000. Ochoa-Gonzalez
    immediately cooperated with the agents. He admitted that he was running drugs
    from Mexico to Atlanta and had done so once before. His practice was to call a
    contact in Mexico to get the phone number of the intended recipient in Atlanta and
    then call the intended recipient to arrange an exchange. The agents told Ochoa-
    Gonzalez to continue with the exchange as planned.
    Ochoa-Gonzalez’s contact in Mexico gave him the Nextel “Direct Connect”
    number of Parra-Chavez, which was the same Atlanta number that Ochoa-
    Gonzalez had called on his previous drug run. Ochoa-Gonzalez and Parra-Chavez
    2
    arranged to meet where they met the first time, the Brooks Cafeteria in Atlanta.
    Federal officers observed Parra-Chavez and two other men meet Ochoa-Gonzales
    at the restaurant. After talking briefly, Parra-Chavez and his two companions left
    the restaurant. About an hour later, they returned in two cars, one of which was a
    green Camry. Parra-Chavez told Ochoa-Gonzalez that the money was in the trunk
    of the Green Camry and handed him the keys. Ochoa-Gonzalez testified that
    Parra-Chavez expected him to return the car with the drugs.
    Federal agents arrested Parra-Chavez, seized his cell phone, and recovered
    $317,720.00 from the Camry’s trunk. Phone records showed that Parra-Chavez
    had been in contact with Ochoa-Gonzalez several weeks earlier and that Parra-
    Chavez had also called Ochoa-Gonzalez’s contact in Mexico. Parra-Chavez was
    charged with conspiracy to possess and distribute methamphetamine and
    attempting to possess with intent to distribute methamphetamine. 
    21 U.S.C. §§ 841
    (a)(1), (b)(1)(A).
    At the close of the presentation of evidence by the government at trial,
    Parra-Chavez moved for a judgement of acquittal. Fed. R. Crim. P. 29. Parra-
    Chavez argued that the government had failed to present sufficient evidence to
    prove his knowing involvement in a conspiracy or an attempt to possess and
    distributed methamphetamine. Parra-Chavez argued that there was no evidence,
    3
    save Ochoa-Gonzalez’s testimony, that Parra-Chavez had discussed, handled, or
    asked for drugs or money. The district court denied the motion and a jury
    convicted Parra-Chavez.
    Applying the Federal Sentencing Guidelines, the probation officer found that
    Parra-Chavez had a total adjusted base level of 38 and a criminal history category
    of 1, which produced a sentencing range of 235 to 293 months. Parra-Chavez
    argued that he should be sentenced below the guideline range because of his age,
    lack of criminal history, and other considerations. 
    18 U.S.C. § 3553
    . He argued
    that he should receive a downward adjustment for a minor role. U.S.S.G. § 3B1.2.
    The court overruled Parra-Chavez’s objections and sentenced Parra-Chavez to
    imprisonment for 235 months and supervised release of 5 years.
    II. STANDARD OF REVIEW
    Three standards of review govern this appeal. First, we review de novo
    whether sufficient evidence supports a conviction, inquiring as to whether, after
    viewing the evidence in the light most favorable to the government, any reasonable
    jury could have found the essential elements of a crime beyond a reasonable doubt.
    See United States v. Charles, 
    313 F.3d 1278
    , 1284 (11th Cir. 2002) (citations
    omitted). All reasonable inferences are drawn in favor of the jury’s verdict.
    United States v. Castro, 
    89 F.3d 1443
    , 1450 (11th Cir. 1996) (citations omitted).
    4
    Second, we review a denial of a minor-role reduction for clear error. United States
    v. De Varon, 
    175 F.3d 930
    , 937-38 (11th Cir. 1999) (en banc). To conclude that
    the district court committed clear error, we must be “left with a definite and firm
    conviction that a mistake has been committed.” United States v. Crawford, 
    407 F.3d 1174
    , 1177 (11th Cir. 2005) (quotation marks omitted). Third, we review a
    sentence for reasonableness. See United States v. Talley, 
    431 F.3d 784
    , 785, 787
    (11th Cir.2005). Review for reasonableness is deferential. 
    Id.
     We reverse only if
    “the sentence imposed by the district court fails to achieve the purposes of
    sentencing as stated in section 3553(a).” 
    Id. at 788
    .
    III. DISCUSSION
    A. The District Court Did Not Err by Denying Parra-Chavez’s Motion for
    Acquittal.
    The burden of proof that the government bore at trial on each of the two
    charges is well-established. To sustain a conviction for conspiracy to possess with
    intent to distribute methamphetamine, the government must offer sufficient
    evidence to prove, beyond a reasonable doubt, that: (1) an illegal agreement existed
    to possess with intent to distribute methamphetamine; (2) the defendant was aware
    of the agreement; and (3) the defendant knowingly and voluntarily joined the
    agreement. Charles, 
    313 F.3d at 1284
    . Where, as here, the government’s case is
    5
    based on circumstantial evidence, “reasonable inferences, and not mere
    speculation, must support the jury’s verdict.” 
    Id.
     (internal quotations and citations
    omitted). A defendant’s mere presence at the scene of the crime, while a probative
    factor, is insufficient in itself to support a conspiracy conviction, as the
    government must also prove that the defendant “knew the essential nature of the
    conspiracy.” 
    Id.
     (internal quotations and citations omitted). To sustain a
    conviction for attempt to possess with intent to distribute methamphetamine, the
    government must show that the defendant had the specific intent to engage in
    criminal conduct and that he took a substantial step toward commission of the
    offense. United States v. Baptista-Rodriguez, 
    17 F.3d 1354
    , 1369 (11th Cir. 1994).
    To find that a substantial step was taken, the court must determine that the
    defendant's objective acts mark the defendant's conduct as criminal so that the
    defendant's acts as a whole strongly corroborate the required culpability. United
    States v. Forbrich, 
    758 F.2d 555
    , 557 (11th Cir. 1985).
    Parra-Chavez argues that insufficient evidence supported each of his
    convictions, but we disagree. The evidence at trial established that Parra-Chavez
    twice delivered large amounts of money to Ochoa-Gonzalez. On the first occasion,
    Ochoa-Gonzalez testified that he returned Parra-Chavez’s car to him with drugs in
    the trunk of the car. Cell phone records and the transcript of telephone
    6
    conversations between Ochoa-Gonzalez and Parra-Chavez corroborated Ochoa-
    Gonzalez’s testimony and revealed a pattern of business in drug transactions.
    Federal agents watched as Parra-Chavez met with Ochoa-Gonzalez at the
    restaurant, followed him while he drove to another location about 30 minutes
    away, and, upon his return, saw him hand Ochoa-Gonzalez the keys to a car
    containing a bag of money. It was neither unreasonable for the jury to find that the
    delivery of money was a substantial step toward the possession and distribution of
    methamphetamine nor for the jury to find that Parra-Chavez was a knowing and
    willing participant in the conspiracy.
    Parra-Chavez also argues that we should discount Ochoa-Gonzalez’s
    testimony because he was only cooperating as part of a plea agreement. This
    argument fails. Parra-Chavez had the opportunity to cross-examine Ochoa-
    Gonzalez before the jury, and it is not for us to second guess the jury’s reasonable
    decision to credit Ochoa-Gonzalez’s testimony. The district court did not err in
    denying Parra-Chavez’s motion for judgment of acquittal.
    B. The District Court Did Not Clearly Err By Denying Parra-Chavez a Minor Role
    Reduction.
    Section 3B1.2(b) of the United States Sentencing Guidelines provides for a
    two-level reduction in a defendant’s base offense level if the court determines that
    7
    the defendant was a minor participant in the offense. U.S.S.G. § 3B1.2(b). In De
    Varon, we established a two-step inquiry for deciding whether a defendant played
    a minor role. First, the district court “must measure the defendant’s role against
    the relevant conduct attributed to [him] in calculating [his] base offense level.” De
    Varon, 
    175 F.3d at 943-44
    . Second, the district court “may also measure the
    defendant’s role against the other participants, to the extent that they are
    discernable, in the relevant conduct.” 
    Id. at 945
    . “[T]he district court may
    consider only those participants who were involved in the relevant conduct
    attributed to the defendant. The conduct of participants in any larger criminal
    conspiracy is irrelevant.” 
    Id. at 944
    . A conspiracy can exist in which no
    participant plays a minor role. See United States v. Zaccardi, 
    924 F.2d 201
    , 203
    (11th Cir. 1991).
    Parra-Chavez argues that, because he had no involvement in the planning of
    the drug transactions nor any contact with drug owners in Mexico and was a mere
    “mule” who delivered money, the district court erred in denying him a minor-role
    reduction. We disagree. Under the first step of the De Varon test, Parra-Chavez
    failed to establish that he played a minor role in the relevant conduct for which he
    was held accountable at sentencing. The evidence showed that Parra-Chavez
    organized and executed the delivery of a large sum of money for the purchase of
    8
    methamphetamine, and Parra-Chavez’s sentence is based on his role in that
    offense. The evidence also showed that Parra-Chavez was not a minor participant
    in comparison to other defendants. The district court did not commit clear error in
    denying Parra-Chavez a minor-role reduction.
    C. Parra-Chavez’s 235 month sentence is reasonable.
    Parra-Chavez argues that his 235-month sentence is unreasonable because he
    was a first time offender, was convicted on the basis of “the minimally
    corroborating testimony” of Gonzalez, and is old enough that the sentence may last
    his entire life. Again, we disagree. The district court imposed a sentence at the
    bottom of the Guidelines range and less than the statutory maximum of life
    imprisonment, both of which are indications of a reasonable sentence. See Talley,
    
    431 F.3d at 788
     (noting that “ordinarily we would expect a sentence within the
    Guidelines range to be reasonable”); Winingear, 422 F.3d at 1246 (comparing the
    sentence imposed to the statutory maximum in determining its reasonableness); 46
    U.S.C. App. § 1903(g) and (j); 
    21 U.S.C. § 960
    (b)(1)(B)(ii). The district
    court accounted for Parra-Chavez’s lack of criminal history by correctly
    calculating the advisory Guidelines range using a criminal history category of 1.
    The district court then considered the factors contained in section 3553(a) and
    adequately accounted for the unique circumstances, if any, present in this case.
    9
    Talley, 
    431 F.3d at 786
    . Parra-Chavez’s sentence is reasonable.
    IV. CONCLUSION
    Parra-Chavez’s conviction and sentence are AFFIRMED.
    10