United States v. Juan Pasillas , 713 F. App'x 311 ( 2018 )

Case: 16-11770 Document: 00514358196 Page: 1 Date Filed: 02/22/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-11770 FILED
Summary Calendar February 22, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JUAN PASILLAS,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-122-20
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
A jury convicted Juan Pasillas of conspiracy to possess with intent to
distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C.
§ 846 and 21 U.S.C. § 841(a)(1), (b)(1)(A). The court sentenced Pasillas to 360
months of imprisonment and five years of supervised release, and Pasillas filed
a timely notice of appeal.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-11770 Document: 00514358196 Page: 2 Date Filed: 02/22/2018
No. 16-11770
Pasillas argues that (1) the evidence was insufficient to convict him of
conspiracy to possess methamphetamine with intent to distribute, (2) this
court should reverse and remand for a new trial because significant and
substantial portions of the record are missing, and (3) the district court erred
by imposing a two-level enhancement for possession of imported
methamphetamine.
This court reviews a challenge to sufficiency of the evidence de novo.
United States v. Chon, 713 F.3d 812, 818 (5th Cir. 2013). This review is “highly
deferential to the verdict.” Id. (citations omitted). “[V]iewing the evidence in
the light most favorable to the prosecution,” we consider whether “any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Id. (citations omitted). To prove a criminal conspiracy, the
Government has the burden of proving beyond a reasonable doubt that (1) an
agreement to violate the law existed and (2) each conspirator knew of, intended
to join, and voluntarily participated in the conspiracy. Id.; see United States v.
Maseratti, 1 F.3d 330, 336, 337 (5th Cir. 1993). Though a mere buyer-seller
relationship does not alone demonstrate that one is a co-conspirator, evidence
of buying and selling activity is probative of whether a defendant intended to
join the conspiracy by redistributing the illegal substance. See Masaratti, 1
F.3d at 336. Here, presented with evidence of the quantity and frequency of
Pasillas methamphetamine purchases and expert testimony that Pasillas’s
wire-tapped phone calls with his supplier demonstrated his intention to
distribute this methamphetamine to other customers, a rational trier of fact
could have determined that Pasillas knew of, intended to join, and voluntarily
participated in an agreement to possess and distribute methamphetamine. See
id.
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Case: 16-11770 Document: 00514358196 Page: 3 Date Filed: 02/22/2018
No. 16-11770
Second, Pasillas argues that this court should reverse and remand for a
new trial because the court reporter’s record is incomplete. Under the Court
Reporter Act (CRA), a court reporter “shall . . . record[] verbatim . . . all
proceedings in criminal cases had in open court.” 28 U.S.C. § 753(b). When “a
criminal defendant is represented on appeal by counsel other than the attorney
at trial, the absence of a substantial and significant portion of the record . . . is
sufficient to mandate reversal.” United States v. Selva, 559 F.2d 1303, 1306
(5th Cir. 1977). Here, however, the omitted material is not substantial or
significant, but rather “administrative in nature.” United States v. Gieger, 190
F.3d 661, 667 (5th Cir. 1999). Therefore, a reversal is not warranted because
the record is “merely technically incomplete.” Selva, 559 F.2d at 1306 n.5.
Third, Pasillas argues that an enhancement under U.S.S.G. § 2D1.1(b)(5)
is not warranted without the offender’s knowledge that the distributed
methamphetamine was imported. However, he acknowledges that this issue
is foreclosed by United States v. Foulks, 747 F.3d 914 (5th Cir. 2014).
Therefore, the district court did not err by applying the enhancement. See id.
at 915.
Pasillas’s conviction and sentence are AFFIRMED.
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