United States v. Gerson Martinez-Turcio , 494 F. App'x 354 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5046
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GERSON GUZMAN MARTINEZ-TURCIO, a/k/a Jerson Martinez,
Defendant - Appellant.
No. 10-5189
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MANUEL ANTONIO PACHECO-LICONA, a/k/a Luis Antonio Diaz-
Zapata,
Defendant - Appellant.
No. 10-5190
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICTOR BARAHONA,
Defendant - Appellant.
No. 10-5250
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAIMUNDO MARTINEZ-ESPINOZA, a/k/a Reymundo Martinez,
Defendant - Appellant.
No. 10-5262
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAVIER ALEX MARTINEZ-TURCIO, a/k/a Javier Turcios-Martinez,
Defendant - Appellant.
No. 10-5291
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
2
LUIS GERARDO PACHECO-LICONA,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Greenville. Henry F. Floyd, District
Judge. (6:10-cr-00054-HFF-8; 6:10-cr-00054-HFF-4; 6:10-cr-
00054-HFF-6; 6:10-cr-00054-HFF-7; 6:10-cr-00054-HFF-1; 6:10-cr-
00054-HFF-5)
Submitted: June 19, 2012 Decided: September 17, 2012
Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Jessica Salvini, SALVINI & BENNETT, LLC, Greenville, South
Carolina, for Appellant Gerson Martinez-Turcio; Christopher R.
Antley, DEVLIN & PARKINSON, PA, Greenville, South Carolina, for
Appellant Manuel Antonio Pacheco-Licona; Robert Sneed, ROB SNEED
LAW FIRM, LLC, Greenville, South Carolina, for Appellant Victor
Barahona; Margaret A. Chamberlain, Greenville, South Carolina,
for Appellant Raimundo Martinez-Espinoza; Kenneth C. Gibson,
Greenville, South Carolina, for Appellant Javier Alex Martinez-
Turcio; Albert Peter Shahid, Jr., SHAHID LAW OFFICE, LLC,
Charleston, South Carolina, for Appellant Luis Gerardo Pacheco-
Licona. William N. Nettles, United States Attorney, Columbia,
South Carolina, Andrew B. Moorman, Sr., Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenville,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
3
PER CURIAM:
In 2010, nine members of a drug trafficking operation
were indicted for conspiracy to distribute marijuana and other
related offenses. Six of the participants who were convicted
appeal their convictions and sentences on various grounds.
Finding no error, we affirm.
I.
In 2009, Special Agent Jay Rajaee, with the Drug
Enforcement Administration (“DEA”), began investigating a drug
trafficking organization believed to be distributing large
amounts of marijuana in and around Greenville, South Carolina.
Agent Rajaee first used global positioning system (“GPS”) data
received from the cellular telephone of a confidential source to
locate two residences used by the organization. The DEA then
conducted physical surveillance of the two properties, which
included mounting a stationary video camera outside of one of
the residences (the “main residence”). Upon viewing days of
video recorded from the mounted camera, Agent Rajaee noticed
that a van arrived at the main residence every few days and
parked behind the main residence in a manner that concealed it
from street view. Agent Rajaee also noticed that the van’s
arrival at the main residence always coincided with the arrival
of several people. On a subsequent occasion in which the van
4
arrived at the main residence, from a vantage point in the woods
behind the residence, Agent Rajaee observed several people form
a human chain between the van and the residence and unload
multiple sacks from the van into the residence. To confirm his
suspicions, Agent Rajaee, on November 4, 2009, purchased half a
pound of marijuana from three members of the organization who
pled guilty prior to trial. DEA agents later learned that the
organization was getting its marijuana from Texas and was
capable of distributing large quantities.
On December 7, 2009, Agent Rajaee, along with other
DEA agents and the Greenville County Sheriff’s Office SWAT team,
executed a search warrant at the main residence. The search
resulted in numerous arrests and yielded three firearms, $18,250
in cash, and 124.7 pounds of marijuana.
Nine members of the drug trafficking organization were
charged with various offenses. Three of the defendants—the
defendants who sold the marijuana to Agent Rajaee—pled guilty to
certain counts against them and did not proceed to trial. The
other six members of the organization charged in the indictment—
Gerson Guzman Martinez-Turcio (“Gerson”), Manuel Antonio
Pacheco-Licona (“Manuel”), Victor Barahona (“Victor”), Raimundo
Martinez-Espinoza (“Raimundo”), Javier Alex Martinez-Turcio
(“Javier”), and Luis Gerardo Pacheco-Licona (“Luis”)—proceeded
to trial, were convicted by a jury, and now appeal their
5
convictions and sentences on various grounds. Each of the
defendants in this appeal was convicted of conspiracy to possess
with intent to distribute marijuana (“Count 1”), see 21 U.S.C.
§§ 841(a)(1), 846; and possession with intent to distribute, and
aiding and abetting the distribution of, marijuana (“Count 3”),
see 18 U.S.C. § 2; 21 U.S.C. § 841(a)(1). Raimundo was
additionally convicted of possession of a firearm in furtherance
of a drug trafficking crime, and aiding and abetting the same
(“Count 4”), see 18 U.S.C. §§ 2 and 924(c).
II. Gerson 1
Gerson’s only argument on appeal is that the district
court erred in denying his motion for judgment of acquittal as
to both of the counts against him. See Fed. R. Crim. P. 29. We
review this claim de novo and view the evidence in a light most
favorable to the government. See United States v. Midgett, 488
F.3d 288, 297 (4th Cir. 2007).
With regard to the conspiracy conviction, Count 1,
Gerson contends that the government did not prove that he
1
For purposes of this appeal, to the extent applicable and
unless otherwise specified, each defendant joins in the
arguments of his co-defendants pursuant to Federal Rule of
Appellate Procedure 28(i). Thus, while we address each claim
according to the defendant who raised it, we have, to the extent
appropriate, considered all arguments as to all of the co-
defendants and have found no reversible error.
6
knowingly agreed to join the conspiracy or that his actions were
in furtherance of the conspiracy. However, “[t]o sustain a
conspiracy conviction, there need only be a showing that the
defendant knew of the conspiracy's purpose and some action
indicating his participation.” United States v. Brooks, 957
F.2d 1138, 1147 (4th Cir. 1992) (internal quotation marks and
alteration omitted). In this case, the government presented
evidence that Gerson lived at the main residence and had $5,000
in cash hidden under his bed; that Gerson was present on two
occasions when the van arrived at the main residence to unload
marijuana; and that Gerson and other co-defendants sold
marijuana to the same buyer on multiple occasions. This
evidence is sufficient to enable a fact finder to find the
“slight connection between the defendant and the conspiracy
[that is needed] to support conviction.” Id. Therefore, the
district court did not err in denying Gerson’s motion with
respect to Count 1.
With regard to Count 3, Gerson contends that the
government did not prove that he possessed marijuana. However,
possession may be constructive, and “[c]onstructive possession
may be proved by demonstrating that the defendant exercised, or
had the power to exercise, dominion and control over the item.”
United States v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en
banc) (internal quotation marks omitted). The evidence
7
discussed above supporting Gerson’s conviction on Count 1 would
enable a reasonable fact finder to convict Gerson on Count 3 as
well. Therefore, the district court did not err in denying
Gerson’s motion with respect to Count 3.
III. Manuel
Like Gerson, Manuel challenges the district court’s
denial of his motion for judgment of acquittal as to Counts 1
and 3. Manuel also challenges three aspects of his sentence.
We begin by addressing the district court’s denial of his
acquittal motion.
A.
As to Manuel’s conviction on Count 1, government
witnesses testified that Manuel was found within the main
residence during the execution of the search warrant and that he
was spotted at the organization’s other residence on two
occasions. On one such occasion, Manuel was seen interacting
with three of the other co-defendants. On the other occasion,
Manuel was seen with a group of others entering that residence
carrying pillows and blankets shortly after the van unloaded
marijuana at the main residence. From this latter evidence, the
jury could infer, as the government suggests, that the other
residence was used as a safe house where members of the
8
organization could rest after transporting marijuana. Finally,
the government presented evidence from which the jury could
infer that Manuel traveled in the van to the main residence with
marijuana on one occasion. Given this collective evidence, a
reasonable fact finder could convict Manuel on Count 1. See
United States v. Cloud, 680 F.3d 396, 408 (4th Cir. 2012) (“In
reviewing [this claim], we must affirm a guilty verdict that . .
. is supported by substantial evidence,” which “is defined as
evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant's
guilt beyond a reasonable doubt.” (internal citation and
quotation marks omitted)).
With regard to Count 3, the same evidence supporting
Manuel’s conviction for Count 1 supports his conviction for
Count 3. Under a constructive possession theory, a reasonable
fact finder could convict Manuel on Count 3. Therefore, the
district court did not err in denying Manuel’s acquittal motion
as to Counts 1 and 3.
B.
Turning to Manuel’s sentencing challenges, we first
address his claim that the district court erred in attributing
at least 400 kilograms but less than 700 kilograms of marijuana
to him for sentencing purposes. We review this claim for clear
9
error. See United States v. Slade, 631 F.3d 185, 188 (4th Cir.
2011). At sentencing, the government presented evidence that
the organization delivered approximately 100 pounds of marijuana
to its customers every three days, that Manuel participated in
the conspiracy for 42 days, and that approximately 14 deliveries
were, therefore, made during his involvement in the conspiracy.
From this evidence, the district court attributed 1,400 pounds
of marijuana to Manuel, which equates to approximately 635
kilograms of marijuana. Thus, the district court did not commit
clear error in calculating the drug quantity attributable to
Manuel at sentencing. See United States v. Randall, 171 F.3d
195, 210 (4th Cir. 1999) (“A district court’s approximation of
the amount of drugs is not clearly erroneous if supported by
competent evidence in the record.”).
C.
Manuel also challenges the district court’s
application of a firearm enhancement, which we review for clear
error. See Slade, 631 F.3d at 188. Section 2D1.1(b)(1) of the
Sentencing Guidelines permits a district court to increase a
sentence by two levels “[i]f a dangerous weapon (including a
firearm) was possessed.” In this case, two handguns were found
in the main residence in a bedroom that was adjacent to a study,
where over 120 pounds of marijuana were found. Thus, the
10
district court’s application of the firearm enhancement was not
clear error. See United States v. Harris, 128 F.3d 850, 852
(4th Cir. 1997) (“[T]he proximity of guns to illicit narcotics
can support a district court's enhancement of a defendant's
sentence under Section 2D1.1(b)(1).”); U.S.S.G. § 2D1.1(b)(1)
cmt. n.3 (“The adjustment should be applied if the weapon was
present, unless it is clearly improbable that the weapon was
connected with the offense.”).
D.
Finally, Manuel challenges the district court’s
refusal to apply a mitigating role adjustment, which we review
for clear error. See United States v. Powell, 680 F.3d 350, 359
(4th Cir. 2012). Pursuant to § 3B1.2 of the Sentencing
Guidelines, a district court may decrease a defendant’s offense
level upon finding that the defendant played a minor or minimal
role in the offense. In light of the evidence previously
discussed, we find Manuel’s role to be “material or essential to
committing the offense[s],” United States v. Akinkoye, 185 F.3d
192, 202 (4th Cir. 1999) (internal quotation marks omitted), and
conclude that the district court did not clearly err in refusing
to apply the adjustment.
11
IV. Victor
Victor raises four arguments on appeal, three
challenging his conviction and one challenging his sentence. We
address these claims seriatim.
A.
Victor first argues that the district court erred by
denying his motion for judgment of acquittal as to the
conspiracy conviction, Count 1. We disagree. At trial,
government witnesses placed Victor at the organization’s main
residence and at its other residence on several occasions
interacting with other co-defendants. Victor was also found
within the main residence when law enforcement executed the
search warrant. Once seen by law enforcement, he fled within
the residence, physically resisted arrest, and had to be subdued
with a Taser. From this evidence, the jury could infer a guilty
state of mind. See United States v. Obi, 239 F.3d 662, 665 (4th
Cir. 2001). A government witness additionally testified that
Victor was found in a bedroom of the main residence lying on the
floor with his hands next to a mattress where a revolver was
later found, showing his apparent knowledge of the location of
firearms in the main residence. With this collective evidence,
a reasonable juror could convict Victor on Count 1.
12
B.
Victor’s second argument is that the district court
erred in admitting testimony of Jose Quinones, a DEA informant.
We review this claim for abuse of discretion. See United States
v. Blevins, 960 F.2d 1252, 1255-56 (4th Cir. 1992). At trial,
over a defense objection, Mr. Quinones testified that in 2008,
Fernando Cruz-Carrasco, an unindicted co-conspirator, and
Javier, a co-defendant in this appeal, both independently told
him that their drug trafficking organization was capable of
transporting 1-3 tons of marijuana from the Mexican border in
Texas to Greenville, South Carolina. The district court
admitted this testimony under Federal Rule of Evidence
801(d)(2)(E), which excepts from the hearsay rule statements
“offered against an opposing party” that are “made by the
party's coconspirator during and in furtherance of the
conspiracy.” On appeal, Victor contends that the district court
erred in admitting this testimony because Victor was not a
member of the conspiracy at the time the statements were made
and because the DEA informant was not a co-conspirator himself.
As to the former contention, it is of no import that Victor may
not have joined the conspiracy at the time the statements were
made because “upon joining the conspiracy, earlier statements
made by co-conspirators after inception of the conspiracy become
admissible against the defendant.” United States v. Jackson,
13
757 F.2d 1486, 1490 (4th Cir. 1985). As to the latter
contention, Rule 801(d)(2)(E) does not require that the witness
be a co-conspirator; it only requires that the declarant be a
co-conspirator. See United States v. Ayala, 601 F.3d 256, 268
(4th Cir. 2010) (“[T]hat a comment was made to . . . a
government informant does not, without more, render it
inadmissible under Rule 801(d)(2)(E).”). Thus, the district
court did not abuse its discretion in admitting Mr. Quinones’
testimony.
C.
Victor’s third argument, which he raises for the first
time on appeal, is that the district court constructively
amended the indictment by instructing the jury on Count 3 in the
disjunctive—possession with intent to distribute or aiding and
abetting—because the indictment charged Count 3 in the
conjunctive—possession with intent to distribute and aiding and
abetting. However, in this circumstance, “an indictment may be
phrased in the conjunctive, when the . . . jury instructions are
phrased in the disjunctive, without creating a constructive
amendment of the indictment.” United States v. Farish, 535 F.3d
815, 823 (8th Cir. 2008) (internal quotation marks omitted); cf.
United States v. Perry, 560 F.3d 246, 256 (4th Cir. 2009)
(“[W]hen the Government charges in the conjunctive, and the
14
statute is worded in the disjunctive, the district court can
instruct the jury in the disjunctive.”); United States v. Wills,
346 F.3d 476, 495 (4th Cir. 2003) (explaining that aiding and
abetting is not an essential element of an offense and need not
even be charged in an indictment). Therefore, the district
court’s jury instruction did not amount to plain error. See
United States v. Olano, 507 U.S. 725, 732 (1993).
D.
Victor’s final argument is that the district court
committed procedural error at sentencing, a claim we review
“under a deferential abuse-of-discretion standard.” United
States v. King, 673 F.3d 274, 283 (4th Cir. 2012). Victor
contends that the district court failed to provide an
individualized explanation of its sentence and failed to
recognize the proper burdens of proof when applying a firearm
enhancement and when refusing to apply a mitigating role
adjustment. At sentencing, however, the district court adopted
Victor’s presentence report “for purposes of supporting the [18
U.S.C. §] 3553(a) facts,” J.A. 748, listened to the parties’
arguments about application of the § 3553(a) factors, and
directly addressed Victor’s arguments about sentence
enhancements and adjustments. Thus, having reviewed the record,
15
we are satisfied that the district court committed no procedural
error at sentencing.
V. Raimundo
Raimundo raises two arguments on appeal. Both
arguments relate to his conviction.
A.
His first contention, which he raises for the first
time on appeal, concerns the GPS tracker that the DEA placed on
the underside of the van used by the organization to transport
marijuana. From this GPS tracker, the DEA learned that members
of the organization were traveling between Houston, Texas, and
Greenville, South Carolina, every three to five days. At trial,
the district court permitted the government to introduce data
from the GPS tracker and to testify about that data. On appeal,
Raimundo contends that the district court erred in admitting
this evidence because the government failed to lay a proper
foundation, see Fed R. Evid. 901, by failing to specify who
placed the device, when the device was placed, and upon which
vehicle the device was placed. 2 At trial, however, two DEA
2
Raimundo does not contend that the government’s
installation of the tracking device or its use to monitor the
(Continued)
16
agents testified that the tracker was placed by DEA agents on “a
white cargo van with ladders” parked at the main residence.
J.A. 280. An employee of the manufacturer of the tracking
device provided testimony showing further that the device was
placed some time within a one-month window in late 2009. Given
this authentication, we conclude that the district court did not
plainly err, see Olano, 507 U.S. at 732, in admitting this data
and related testimony.
B.
Raimundo’s second challenge on appeal is to the
district court’s denial of his motion for judgment of acquittal
as to Count 4, possession of a firearm in furtherance of a drug
trafficking crime. He challenges only the jury’s finding that
he possessed a firearm; he does not challenge whether any of the
firearms found were used in furtherance of the drug conspiracy.
In this case, Raimundo lived in the main residence, and a
firearm was found in the bedroom in which Raimundo stayed.
Therefore, under a constructive possession theory, see Burgos,
94 F.3d at 873, a reasonable finder of fact could find Raimundo
guilty as to Count 4. Cf. United States v. Shorter, 328 F.3d
van’s movements constituted an invalid search under the Fourth
Amendment.
17
167, 172 (4th Cir. 2003) (“[T]he fact that the firearms . . .
were found in [a defendant’s] home permits an inference of
constructive possession.”); United States v. Alanis, 265 F.3d
576, 592 (7th Cir. 2001) (“When a gun is found in a defendant's
bedroom, as here, it would not be improper for the jury to infer
that [the defendant] had both knowledge of the firearm and an
intent to exercise dominion and control over it merely from its
presence in the bedroom . . . .” (internal quotation marks
omitted)).
VI. Javier
Javier raises three claims on appeal, two of which
relate to his conviction and one of which relates to his
sentence.
A.
His first challenge is to the district court’s denial
of his motion to suppress. “[W]e review the district court's
factual findings for clear error and its legal conclusions de
novo.” United States v. Farrior, 535 F.3d 210, 217 (4th Cir.
2008). Trooper Scott Cash, of the Virginia State Police,
testified that he pulled over a Chevy Avalanche driven by Javier
because of three separate traffic violations. The trooper
approached the vehicle, asked for Javier’s license and
18
registration, and noticed several things about Javier’s
demeanor: “he was extremely nervous[,] . . . his hands were
shaking, his body was shaking, his chest was rapidly
increasing[,] . . . [and w]hile talking to him he always looked
back towards the two passengers in the rear [of the vehicle]
looking for guidance in answers to the questions.” J.A. 91.
When the front passenger opened the glove compartment to
retrieve the registration, Trooper Cash noticed within that
compartment a large amount of U.S. currency bundled up in rubber
bands. During this exchange, Trooper Cash also noticed that the
vehicle had a single key in the ignition and that three air
fresheners were visible in the vehicle, one of which was located
in the glove compartment on top of the cash. Trooper Cash
believed the air freshener in the glove compartment was meant to
mask drug odors on the cash. When the front passenger saw that
the cash was visible, he quickly scooped it out of the glove
compartment with his hand and threw it on the floorboard of the
vehicle.
After Trooper Cash checked the license and
registration in his patrol car, he returned to the Avalanche and
asked Javier to exit the vehicle and come back to the patrol car
parked behind the Avalanche. Javier complied and sat in the
front passenger seat of the patrol car. In response to an
inquiry about the cash in the glove compartment, Javier stated
19
that he worked in construction and that the money belonged to
his boss. Trooper Cash, however, noted that Javier’s “hands
were extremely soft,” which was inconsistent, in Cash’s
experience, with the hands of a construction worker. J.A. 98.
Trooper Cash explained to Javier that he was receiving a verbal
warning and told him he was free to leave. When Javier opened
the patrol car door and placed both feet on the ground, Trooper
Cash asked Javier if he would mind speaking with him further.
Javier agreed to speak further with Trooper Cash, placing his
left foot back in the vehicle but leaving the door ajar.
Trooper Cash then asked a variety of questions using a Spanish
language guide, which contained Spanish and English versions of
various questions. Using this guide, Trooper Cash would read a
question aloud in English and Javier would then read the Spanish
translation to himself and respond to the question aloud in
English. One question posed in this fashion was “‘May I search
your vehicle,’” to which Javier responded “‘Yeah.’” J.A. 102.
Trooper Cash then searched the Avalanche with the aid of other
state troopers who had since arrived on the scene. In the rear
of the vehicle, they found $55,642 in U.S. currency hidden
within a box of detergent.
Javier does not challenge the initial traffic stop,
but he does contend that Trooper Cash unlawfully prolonged the
traffic stop and that his consent to the search was not
20
voluntary. These contentions are without merit. “If a police
officer seeks to prolong a traffic stop to allow for
investigation into a matter outside the scope of the initial
stop, he must possess reasonable suspicion” of other criminal
activity, United States v. Digiovanni, 650 F.3d 498, 507 (4th
Cir. 2011), a showing of which must include “specific and
articulable facts that demonstrate at least a minimal level of
objective justification for the belief that criminal activity is
afoot,” United States v. Branch, 537 F.3d 328, 337 (4th Cir.
2008) (internal quotation marks omitted). Here, Javier’s
demeanor, combined with the cash in the glove compartment, the
passenger’s attempt to hide the cash, the placement of the air
fresheners, the single key in the ignition, and the perceived
lie about the source of the money amounted to reasonable
suspicion. Thus, assuming without deciding that the
conversation following termination of the traffic stop was not a
consensual one, Trooper Cash had reasonable suspicion that
criminal activity was afoot, so his continued investigation was
not unlawful.
With regard to the voluntariness of Javier’s consent
to have the Avalanche searched, we consider the totality of the
circumstances to determine if the district court’s factual
findings were clearly erroneous. See United States v. Gordon,
895 F.2d 932, 938 (4th Cir. 1990). In contending that his
21
consent was involuntary, Javier argues that he did not
understand his rights and that the environment was coercive.
The former argument does not help Javier because Trooper Cash
never suggested that Javier was required to consent to the
search and, in any event, “the government need not demonstrate
that the defendant knew of the right to refuse to consent for
the search to be deemed a voluntary one.” Id. As to the latter
argument concerning coercion, Trooper Cash sought Javier’s
consent in Javier’s first language of Spanish, knowing that
Javier might understand that language better, and Javier
unequivocally gave his consent. The door to the patrol car’s
passenger seat, where Javier was sitting, was ajar at the time.
And the additional troopers at the scene did not exit their
vehicles until after Javier gave his consent. Given these
facts, we find that the district court did not clearly err in
deeming the consent voluntary. Therefore, the district court
did not err in admitting the money seized from this traffic
stop.
B.
Javier’s second argument on appeal is that the
district court erred in admitting evidence of drug activity in
Virginia. Because Count 1 of the indictment restricts the
geographic scope of the charges in that count to “the District
22
of South Carolina,” J.A. 18, and does not include the language
“and elsewhere,” Javier contends that evidence of conduct
outside of South Carolina is inadmissible because it would be
irrelevant under Federal Rule of Evidence 402. We disagree.
The evidence at issue revealed a conspiracy to distribute
marijuana in the Virginia area between several people, and this
evidence made the existence of a conspiracy between some of the
same persons in South Carolina “more . . . probable than it
would be without the evidence.” Fed. R. Evid. 401(a). The
facts revealed through this testimony were also “of
consequence,” Fed. R. Evid. 401(b), because their “existence . .
. provide[d] the fact-finder with a basis for making some
inference, or chain of inferences, about an issue that is
necessary to a verdict,” United States v. McVeigh, 153 F.3d
1166, 1190 (10th Cir. 1998), overruled on other grounds by Hooks
v. Ward, 184 F.3d 1206 (10th Cir. 1999). Therefore, the
evidence was relevant and admissible.
C.
Finally, Javier challenges the substantive
reasonableness of his sentence, arguing that the district court
erred by considering opportunities for rehabilitation. At
sentencing, the district court adopted the government’s §
3553(a) analysis, in which the government stated that certain
23
sentences “would provide [Javier] with much needed educational
and vocational rehabilitation.” J.A. 819. In light of the
Supreme Court’s recent pronouncement that 18 U.S.C. § 3582(a)
“precludes federal courts from imposing or lengthening a prison
term in order to promote a criminal defendant’s rehabilitation,”
Tapia v. United States, 131 S. Ct. 2382, 2385 (2011), Javier
contends that the district court’s alleged consideration of
rehabilitation requires resentencing. We disagree.
As the Court explained in Tapia, a sentencing court
may consider and discuss “the opportunities for rehabilitation
within prison or the benefits of specific treatment or training
programs,” but the “court may not impose or lengthen a prison
sentence to enable an offender to complete a treatment program
or otherwise to promote rehabilitation.” Id. at 2392-93. The
government’s statement—a clear reference to § 3553(a)(2)(D),
which requires consideration of “needed educational or
vocational training”—was little more than an acknowledgment of
the services that might be beneficial to Javier while
incarcerated, and we find nothing in the record indicating that
the district court imposed the sentence or lengthened the
sentence term for the purpose of furthering some rehabilitative
goal. Thus, there was no Tapia error. See United States v.
Tolbert, 668 F.3d 798, 803 (6th Cir. 2012) (finding no Tapia
error where district court suggested defendant could benefit
24
from mental health treatment but otherwise relied on § 3553(a)
factors and “failed to make the kind of statements that were
made by the district court in Tapia”).
VII. Luis
Like Javier, Luis raises three claims on appeal, two
pertaining to his conviction and one pertaining to his sentence.
A.
His first argument is that the district court erred in
denying his motion for judgment of acquittal as to Count 1, the
conspiracy Count. He focuses his argument on the quantity of
marijuana for which he was convicted, contending that the
government did not prove a drug conspiracy involving 1000
kilograms or more. As before, we review this claim de novo and
view the evidence in a light favorable to the government. See
Midgett, 488 F.3d at 297. The government contends that Luis did
not raise this specific objection at trial, in which case we
would review for plain error. See Olano, 507 U.S. at 732.
Assuming, but without deciding, that Luis preserved this
objection, we find that a reasonable finder of fact could have
convicted Luis on Count 1. Based on the testimony of one
government witness alone, the government presented evidence that
Luis, along with at least one other co-conspirator, actually
25
sold in excess of 1,000 kilograms of marijuana. This evidence
is sufficient to convict Luis on Count 1. Additionally, the
government presented evidence that Luis claimed to live at the
main residence, he was present on the day of the search of the
main residence, and his car was seen at both the main residence
and the other residence. Thus, the evidence was more than
sufficient to convict Luis on Count 1, and the district court,
therefore, did not err in denying his acquittal motion.
B.
Luis also challenges the search of the van, contending
that the placement of the GPS tracker on the van and its use to
monitor the vehicle’s movements ran afoul of the Fourth
Amendment. He raises this argument in the reply brief only.
Because Victor is the only other co-defendant who joined Luis in
filing a reply brief, we consider this argument as to Luis and
Victor only. 3 In advancing the argument, Luis directs us to the
Supreme Court’s recent conclusion that the installation of such
a device and its use to monitor vehicular movement constitutes a
3
Although each defendant joined in the arguments of his co-
defendants set forth in the opening brief, the failure on the
part of the co-defendants other than Luis and Victor to file a
reply brief, much less sign on to the arguments made therein,
precludes our consideration of this claim as to those
defendants.
26
search. See United States v. Jones, 132 S. Ct. 945, 949 (2012).
Luis, however, acknowledges that the van did not belong to him
and fails to direct the court to any place in the record
suggesting that he had some legitimate expectation of privacy in
the van. He, therefore, has no privacy interest in the van and
lacks standing to challenge the search. See United States v.
Carter, 300 F.3d 415, 421 (4th Cir. 2002) (per curiam) (“A
[person who is not operating] a car normally has no legitimate
expectation of privacy in an automobile in which he asserts
neither a property interest nor a possessory interest . . . .”). 4
C.
Finally, Luis argues that the district court erred in
calculating the drug quantity at sentencing. The evidence that
is sufficient to support Luis’s conviction for possession with
intent to distribute over 1,000 kilograms of marijuana is
likewise sufficient to support the district court’s drug weight
calculation at sentencing. We therefore find no clear error on
the part of the district court. See United States v. Cabrera-
4
Like Luis, Victor does not contend that he owned the van
nor does he direct the court to any legitimate expectation of
privacy that he has in the van. Therefore, we conclude that he,
like Luis, lacks standing to challenge the search of the van.
27
Beltran, 660 F.3d 742, 756 (4th Cir. 2011); Randall, 171 F.3d at
210.
VIII.
For the foregoing reasons, the defendants’ convictions
and sentences are affirmed.
AFFIRMED
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