United States v. Torres , 212 F. App'x 361 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 5, 2007
Charles R. Fulbruge III
Clerk
No. 05-30324
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO TORRES,
Defendant-Appellant.
.................................................................
No. 05-30326
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LESLIE “BEAU” KIMES,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
Before GARWOOD, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
Defendants Eduardo “Eddie” Torres (Torres) and Leslie “Beau”
Kimes (Kimes) were each found guilty of conspiracy to possess
with intent to distribute fifty grams or more of methamphetamine
and 500 grams or more of a mixture or substance containing a
detectable amount of methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1) and 846. Kimes was also found guilty of two
additional charges: attempt to possess with intent to distribute
five grams or more of methamphetamine in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2; and possession with intent to
distribute methamphetamine in violation of 21 U.S.C § 841(a)(1)
and 18 U.S.C. § 2. Torres was subsequently sentenced to 168
months of imprisonment and Kimes was sentenced to ninety-seven
months of imprisonment. Torres does not challenge his conviction
but does challenge his sentence, arguing that he was incorrectly
held responsible for twelve pounds of methamphetamine based on
the unreliable and uncorroborated testimony of a co-conspirator.
Kimes challenges the sufficiency of evidence supporting his
convictions. Finding no reversible error, we affirm as to both
Kimes and Torres.
BACKGROUND FACTS AND PROCEEDINGS
In July 2003, John Auger, II (Auger) began cooperating with
FBI special agent Greg Adams (Adams) and the FBI Metro Safe
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2
Streets Task Force (FBI), which was investigating a
methamphetamine ring in Union Parish and northeast Louisiana. As
part of his cooperation, Auger made consensually monitored
telephone calls to and provided information regarding the other
members of the methamphetamine distribution conspiracy. During
this time, Auger also arranged for his supplier, Torres, to
continue to sell him methamphetamine and ship it to him in
Louisiana. Initially, Matt Zancanilla, Quinn Campbell, and Wes
Goodrich—each of whom obtained their methamphetamine from
Torres—supplied Auger with methamphetamine, but in late 2002 they
put Auger directly in touch with Torres. At all times, Torres,
who resided in Madera, California, was the ultimate supplier of
the methamphetamine Auger distributed. Auger testified that each
purchase from Torres was in a one-pound amount and cost $6,500 a
pound.
Upon receipt of his order from Torres, Auger would then
front portions of those one-pound shipments among the
co-conspirators Jason Murray, Neal Pace, and Kimes. Murray would
then send to Torres via FedEx the money owed to him. During this
period of cooperation, Auger double-crossed the FBI twice by
having Torres ship drugs to him surreptitiously at different
addresses—successfully in July 2003 and unsuccessfully on August
15, 2003 when the FBI intercepted the package. Each package
contained the usual one-pound amount of methamphetamine. Auger
3
was arrested when his betrayal was discovered but continued to
cooperate with investigators with the incentive of potential
leniency at sentencing.
In the course of the taped phone calls, the conspirators
informed Auger of the amounts of drugs they wanted to purchase
from him and arranged a meeting place and time. All except
Torres were arrested when they arrived at their scheduled August
15, 2003 meeting. Law enforcement agents arrested Torres when
they searched his home in August 2003 and found 434.55 grams of
methamphetamine, FedEx labels, an envelope, a scale, and a
firearm. Torres “admitted [to agents] he ‘messed up’ and
distributed methamphetamine.” On September 10, 2003, a federal
grand jury indicted Kimes,1 Torres,2 and three other named
1
Kimes was ultimately found guilty of Counts One, Five, and
Seven in the indictment, which he now appeals:
“COUNT 1 (CONSPIRACY)
Beginning in the summer of 2001 and continuing
through August 21, 2003, the exact dates being
uncertain, in the Western District of Louisiana, and
elsewhere, the defendants, [Torres, Kimes, and others]
did knowingly and intentionally conspire and agree
together to possess with intent to distribute 50 grams
or more of methamphetamine and 500 grams or more of a
mixture or substance containing a detectable amount of
methamphetamine, a Schedule II controlled substance,
all in violation of Title 21, United States Code,
Sections 841(a)(1) and 846. . . .
COUNT 5 (ATTEMPT TO POSSESS WITH INTENT TO DISTRIBUTE)
On or about August 16, 2003, in the Western
District of Louisiana, the defendant, BEAU KIMES,
knowingly attempted to possess with intent to
distribute 5 grams or more of methamphetamine and 50
grams or more of a mixture and substance containing a
detectable amount of methamphetamine, a Schedule II
4
defendants.
The first trial resulted in a mistrial and the second trial
ended on June 14, 2004. The jury in the second trial found
Torres guilty of conspiracy to distribute fifty grams or more of
methamphetamine and 500 grams or more of a mixture containing
methamphetamine, but found him not guilty of possession of a
firearm in furtherance of a drug trafficking crime. Kimes was
found guilty of all three counts with which he was charged and
controlled substance, all in violation of Title 21,
United States Code, Section 841(a)(1) and Title 18,
United States Code, Section 2. . . .
COUNT 7 (POSSESSION WITH INTENT TO DISTRIBUTE)
On or about August 16, 2003, in the Western
District of Louisiana, the defendant, BEAU KIMES,
knowingly possessed with intent to distribute
methamphetamine, a Schedule II controlled substance,
all in violation of Title 21, United States Code,
Section 841(a)(1) and Title 18, United States Code,
Section 2.” Kimes Rec. Excerpts, Tab 2.
2
Torres was ultimately found guilty of Count One in his
superseding indictment:
“COUNT 1 (CONSPIRACY)
Beginning in the summer of 2001 and continuing
through August 21, 2003, the exact dates being
uncertain, in the Western District of Louisiana, and
elsewhere, the defendant, EDUARDO TORRES, and other
persons both known and unknown to the grand jury, did
knowingly and intentionally conspire and agree together
to possess with intent to distribute 50 grams or more
of methamphetamine or 500 grams or more of a mixture or
substance containing a detectable amount of
methamphetamine, a Schedule II controlled substance,
all in violation of Title 21, United States Code,
Sections 841(a)(1) and 846.” Torres Rec. Excerpts, Tab
3.
5
received a sentence of ninety-seven months’ imprisonment on each
of his three convictions at his March 8, 2005 sentencing hearing.
At Torres’s sentencing hearing on March 7, 2005, the
district judge heard the testimony of defense witness Rogerio
Garza (Garza) in addition to argument from defense counsel and
from the government. Garza testified as to conversations he had
with Auger while the two were cellmates for two months at the
Union Parish Detention Center from April to June of 2004. Garza
testified that Auger confessed to him that Wes Goodrich was his
source of methamphetamine and he only received the single
intercepted package from Torres. According to Garza, Auger said
“he was going to ‘blame the guys that they already had’ and he
was ‘going to lie’ because ‘all he wanted was to just go home.’”
The district court determined that there was sufficient
creditable evidence to support the conclusion that over the
course of the conspiracy Torres shipped at least twelve pounds of
methamphetamine to Auger to distribute in Louisiana and that
Garza’s testimony did not persuade him otherwise.3 Therefore,
3
The court stated in part in this connection:
“. . . Defendant suggests through Garza that Auger had
a motive to attribute his purchases of methamphetamine
to the defendant rather than to his friend, Wes
Goodrich.
However, by attributing these amounts to the
defendant, Auger, Auger implicated himself in the
relevant conduct and increased his own potential
sentence as a result. If, as he allegedly told Garza,
he was willing to lie in order to avoid a prison
sentence, he certainly had no motive to attribute
amounts of methamphetamine to defendant that would only
6
the resulting guidelines sentencing range was 168 to 210 months,
and the district court sentenced Torres to 168 months.
Kimes appeals his convictions on counts 1 (conspiracy) and 7
(possession with intent to distribute), but not his conviction on
count 5 (attempted possession with intent to distribute). Torres
appeals his sentence.
DISCUSSION
I. Sufficiency of the Evidence to Support Kimes’ Convictions
Kimes challenges the sufficiency of the evidence to support
two of his convictions. We review the evidence presented and all
reasonable inferences therefrom in the light most favorable to
the prosecution to determine whether a rational jury could have
found the essential elements of the offenses beyond a reasonable
doubt. Jackson v. Virginia, 99 S.Ct. 2781 (1979); United States
v. Brugman, 364 F.3d 613, 615 (5th Cir. 2004); United States v.
serve to increase his own prison sentence.
Further, the Court had the opportunity to hear
Auger’s testimony at trial as well as that of co-
defendant Murray. Nothing contained in the presentence
report and presented as evidence at trial was
contradicted by the testimony of Garza. While he
suggested Auger might have purchased more
methamphetamine from Wes Goodrich than he did from
defendant, defendant was not shown – has not shown a
sufficient basis to find the witness’s testimony
unreliable, untrue, or inaccurate as to the amounts
that were attributed to the defendant.
After considering the evidence presented at trial,
the testimony of Rogerio Garza and the argument of
counsel, the Court concludes that the defendant is
appropriately attributed with 12 pounds of
methamphetamine.”
7
Garcia, 86 F.3d 394, 398 (5th Cir. 1996). The jury is free to
choose among reasonable interpretations of evidence, and the
evidence need not exclude all possibility of innocence. United
States v. Perrien, 274 F.3d 936, 939–40 (5th Cir. 2001). We
accept all reasonable inferences and credibility determinations
that support the jury’s verdict. United States v. Gonzales, 866
F.2d 781, 783 (5th Cir. 1989). The jury’s credibility choices
are not to be disturbed absent a showing that the testimony
relates to facts the witness could not have observed or to events
which could not have possibly occurred. United States v. Bermea,
30 F.3d 1539, 1552 (5th Cir. 1994).
A. Count One: Conspiracy
To convict Kimes of conspiracy to distribute
methamphetamine, the government must prove that Kimes: (1) had an
agreement with at least one other person to violate the narcotics
laws; (2) knew of the existence of the conspiracy and intended to
join it; and (3) voluntarily participated in the conspiracy.
United States v. Rena, 981 F.2d 765, 771 (5th Cir. 1993); 21
U.S.C. §§ 841(a)(1)4 and 846.5 The government may prove the
4
21 U.S.C. § 841(a) (2002) provides:
“(a) Unlawful acts
Except as authorized by this subchapter, it shall be
unlawful for any person knowingly or intentionally--
(1) to manufacture, distribute, or dispense, or possess
with intent to manufacture, distribute, or dispense, a
controlled substance; or
(2) to create, distribute, or dispense, or possess with
intent to distribute or dispense, a counterfeit
8
existence of the conspiracy by circumstantial evidence alone.
United States v. Paul, 142 F.3d 836, 840 (5th Cir. 1998). And,
we have upheld a conspiracy conviction that was based on the
uncorroborated testimony of a co-conspirator cooperating with the
government in exchange for leniency. United States v. Medina,
161 F.3d 867, 872-73 (5th Cir. 1998). “An express agreement is
not required; a tacit, mutual agreement with common purpose,
design, and understanding will suffice.” United States v.
Infante, 404 F.3d 376, 385 (5th Cir. 2005).
Kimes argues that the government failed to produce
sufficient evidence showing he was involved in a conspiracy to
distribute methamphetamine. Kimes contends that the evidence
merely indicates he was a buyer in several, unrelated
transactions and lacked any intent to distribute methamphetamine.
Indeed, evidence of no more than only a buyer–seller relationship
does not of itself provide sufficient support for a conspiracy
conviction. United States v. Casel, 995 F.2d 1299, 1306 (5th
Cir.1993). However, evidence indicating both parties to the sale
knew that the drugs were meant for resale may suffice to
substance.”
5
21 U.S.C. § 846 provides:
“Any person who attempts or conspires to commit any
offense defined in this subchapter shall be subject to
the same penalties as those prescribed for the offense,
the commission of which was the object of the attempt
or conspiracy.”
9
establish a distribution conspiracy between the parties. Id.Viewed in the light most favorable to the verdict, the
evidence presented at the trial supports a finding that Kimes
knowingly entered into an agreement with Auger to take possession
of a large amount of methamphetamine with the intent to
distribute it. First, at the time of his arrest, Kimes was in
possession of drug paraphernalia indicative of intended
distribution including baggies and a sizeable amount of
methamphetamine as well as a police scanner. Second, the
government put in evidence at trial taped conversations between
Auger and Kimes that contained references to Kimes’ plans to
distribute the drugs. Agent Adams testified that in one of the
taped conversation between Auger and Kimes, Kimes had said that
an individual was present and wanting to buy a half gram of
methamphetamine. Moreover, the agreed upon amount of
methamphetamine Kimes had negotiated to buy from Auger at the
August 2003 meeting was one-half pound, which Adams testified is
not commonly associated with personal use but with distribution.
As further evidence of a conspiratorial relationship, Auger
fronted drugs to Kimes, “which indicates an ongoing relationship
of mutual trust and cooperation between these individuals rather
than a one-time buyer–seller transaction.” United States v.
Santos, No. 05-20177, 2006 WL 3028096, at *4 (5th Cir. Oct. 25,
2006) (citing United States v. Posada-Rios, 158 F.3d 832, 860
10
(5th Cir. 1998) (reasoning that drugs purchased on consignment
serves as strong evidence of membership in a conspiracy because
it demonstrates a strong level of trust and a mutually dependent
relationship)). Auger testified that he normally fronted four or
six ounces at a time to Kimes, identified the individuals to whom
Kimes was selling methamphetamine, and testified he had no doubt
Kimes was distributing. Finally, the large amounts of
methamphetamine involved (at least twelve pounds) could, under
these circumstances, indicate that all parties involved knew that
the methamphetamine was intended for distribution.
We hold the evidence is sufficient to support the jury’s
verdict on the conspiracy count.
B. Count Seven: Possession with Intent to Distribute
Kimes concedes that he possessed 3.69 grams of
methamphetamine at the time of his arrest but argues that the
evidence is insufficient to support the jury’s verdict finding
the required element of intent to distribute. Kimes argues that
even if the evidence is sufficient to show he intended to
distribute the larger amounts for which he was found guilty in
the conspiracy charge, the evidence is insufficient to show he
intended to distribute the smaller amount he possessed at the
time of his arrest. Rather, he asserts the evidence could only
show he intended it for personal use.
To convict Kimes of methamphetamine possession with intent
11
to distribute, the government must prove that Kimes knowingly
possessed the drug and intended to distribute it. Infante, 404
F.3d at 385; 21 U.S.C. § 841(a)(1). An aider and abettor is
punishable as a principal. 18 U.S.C. § 2. Distribution intent
may be inferred from an amount of drugs present inconsistent with
personal use or the presence of paraphernalia indicative of
distribution. See United States v. Lucien, 61 F.3d 366 at 376
(5th Cir. 1995) (small amount of drugs with large amount of cash,
three weapons, and plastic bag with several foil packets held to
be sufficient evidence to establish intent to distribute); United
States v. Munoz, 957 F.2d 171, 174 (5th Cir. 1992) (holding that
small quantity of cocaine was sufficient to infer distribution
intent when augmented by evidence of distribution paraphernalia
or large quantities of cash); United States v. Pigrum, 922 F.2d
249, 251 (5th Cir. 1991) (two scales, coffee cup containing test
tube, and cutting agent held to be sufficient).
At the time of his arrest, Kimes was in possession of
methamphetamine, a pipe, a police scanner, and numerous baggies
of the type used to package drugs of this nature for
distribution. To support his argument that the drugs were
indisputably for his personal use and that an intent to
distribute cannot be inferred, Kimes relies primarily on two
cases where the small amount of drugs found on the defendant at
the time of arrest was legally insufficient to support an
12
inference of intent to distribute. United States v. Hunt, 129
F.3d 739, 742, 744 (5th Cir. 1997) (razor blade, small amount of
crack, blunts, and gun insufficient to establish distribution
intent); United States v. Skipper, 74 F.3d 608, 611 (5th Cir.
1996) (presence of razor and noted absence of smoking
paraphernalia found to be insufficient and observing,
“Paraphernalia that could be consistent with personal use does
not provide a sound basis for inferring intent to distribute.”).
Kimes claims that the additional paraphernalia found in his
possession with the amount of methamphetamine were consistent
with personal use rather than distribution and, therefore, do not
support such an inference. Additionally, Kimes points to Auger’s
testimony at his sentencing hearing where Auger testified that he
had used drugs with Kimes every time they met and agreed that
Kimes had a drug problem. Auger also admitted in that sentencing
testimony that he and Kimes had consumed up to a half ounce
(fourteen grams) of methamphetamine in a single day.
Kimes has not succeeded in overcoming his heavy burden.
First, we cannot consider evidence presented at the sentencing
hearing in evaluating the sufficiency of the evidence presented
at trial to sustain a conviction. Also, the fact that Kimes was
also a user of the drug does not exclude the possibility that the
jury may have found he distributed as well. Further, this case
is distinguishable from both Hunt and Skipper due to the presence
13
of the distribution-related paraphernalia in addition to the
drugs he possessed at the time of his arrest. In both Hunt and
Skipper, each jury was essentially able to consider only the
presence of a razor with a relatively small amount of drugs,
which was held not to be a sufficient basis for inferring an
intent to distribute. See Hunt, 129 F.3d at 741–43; Skipper, 74
F.3d at 610–11. Here, in contrast, the jury was also able to
consider Auger’s testimony in which he named individuals to whom
Kimes distributed regularly; Auger’s testimony describing the
sizeable amounts of methamphetamine Kimes purchased from him;
Adams’s testimony that these amounts are consistent with
distribution and not just personal use; and Kimes’s possession at
time of arrest of distribution paraphernalia including a police
scanner tuned to the local police channel and numerous baggies.
Also, Kimes was arrested en route to a meeting where he intended
to acquire from Auger up to a half-pound of additional
methamphetamine to add to the amount he already possessed.6
Viewing the evidence in the light most favorable to the
government, we find that a reasonable trier of fact could
conclude that Kimes intended to distribute the methamphetamine he
possessed at the time of his arrest despite its limited quantity.
The evidence as presented at trial is sufficient to sustain
6
This was the basis for Kimes’s conviction on the charge of
attempted possession with intent to distribute, which he does not
appeal.
14
Kimes’s conviction of possession of methamphetamine with intent
to distribute.
II. Determination of Drug Amount for Torres’s Sentencing
We review de novo the sentence imposed by the district
courts under advisement from the United States Sentencing
Guidelines (U.S.S.G.), applying a clear error standard of review
to claims of erroneous fact-finding regarding the application of
adjustments under the guidelines. United States v. Villanueva,
408 F.3d 193, 202–03 (5th Cir. 2005); United States v. Booker,
125 S.Ct. 738 (2005). A factual finding is not clearly erroneous
if it is plausible after reviewing the record as a whole. United
States v. Thomas, 12 F.3d 1350, 1368 (5th Cir. 1994).
Furthermore, to preclude the district court’s reliance on
information in the PSR that does not facially appear unreliable,
the defendant’s rebuttal evidence against a PSR’s information
must normally show that it is materially untrue, inaccurate, or
unreliable. United States v. Taylor, 227 F.3d 771, 724 (5th Cir.
2001). U.S.S.G. § 6A1.3(a) provides:
“When any factor important to the sentencing
determination is reasonably in dispute, the parties
shall be given an adequate opportunity to present
information to the court regarding that factor. In
resolving any dispute concerning a factor important to
the sentencing determination, the court may consider
relevant information without regard to its
admissibility under the rules of evidence applicable at
trial, provided that the information has sufficient
indicia of reliability to support its probable
accuracy.”
15
Torres’s PSR concluded that Torres was responsible for at
least twelve pounds, or 5.448 kilograms, of methamphetamine based
on Auger’s statements that he obtained approximately that amount
from Torres between May 2002 and August 2003. The resulting base
offense level was thirty-six, which was then reduced by two
points for acceptance of responsibility. Torres argues that he
should not be held responsible for twelve pounds of drugs because
Auger was patently unreliable and any corroboration of Auger’s
testimony yielded only four to five pounds of methamphetamine
attributable to Torres, thereby resulting in a base offense level
of thirty-four and total offense level of thirty-two.7 Torres
claims he presented sufficient rebuttal evidence that any
uncorroborated information from Auger is unreliable, and
therefore such testimony should not be considered by the district
court because there is insufficient indicia of reliability: (1)
it is not disputed that Auger double-crossed the FBI, and
therefore lies, and (2) Auger’s former cell-mate, Garza,
testified as to the unreliability of Auger’s testimony.
We are not persuaded. There is nothing in the record to
show that the district court was clearly erroneous in finding
that Garza’s testimony did not demonstrate that less than twelve
7
Torres refers us to the trial testimony of a co-
conspirator, Murray, where he testifies he sent a total of
$13,000 to Torres for Auger, which supports a finding of two
pounds at the established $6,500/pound price, and received three
one-pound shipments of methamphetamine from Torres.
16
pounds were involved and that Auger’s testimony was sufficiently
reliable. Also, while Torres objected to certain paragraphs of
his PSR, he did not present any evidence to challenge the
assertion that he was the ultimate supplier of Auger’s previous
suppliers, Goodrich and Zancanilla—which further supports the
findings of the methamphetamine amounts in the PSR. Indeed,
Torres’s PSR details specific deliveries of methamphetamine in
one-pound quantities between late 2002 and August 2003. Torres’s
sole argument is that Auger’s testimony is incredible. However,
the district judge was able to evaluate the credibility of the
various witnesses, including Auger, continuously during the two
trials and the sentencing hearing, and found that Torres did not
uphold his burden to demonstrate that the PSR information was
materially untrue, inaccurate, or unreliable. See note 3 supra.
There is nothing in the record that warrants vacating
Torres’s sentence in the face of the clear error standard, and we
do not find that the district judge clearly erred in determining
Auger’s testimony to be sufficiently credible to support the
PSR’s assertions. See, e.g., 18 U.S.C.§ 3742(3) (2003) (“The
court of appeals shall give due regard to the opportunity of the
district court to judge the credibility of the witnesses, and . .
. shall give due deference to the district court’s application of
the guidelines to the facts.”); United States v. Ocana, 204 F.3d
585, 593 (5th Cir. 2000) (“[Co-conspirators’] inconsistent
17
testimony alone . . . is not enough to demonstrate that this
testimony upon which the district court relied is materially
untrue. The inconsistent pattern of their testimony in and of
itself does not command that we ignore the district court’s
appreciation of their testimony as reliable.”); Posada–Rios, 158
F.3d at 861. Torres’s sentence is affirmed.
CONCLUSION
For the foregoing reasons, we AFFIRM the convictions and
sentences of Torres and Kimes.
AFFIRMED.
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