United States v. Chase Logan Guzman , 926 F.3d 991 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-1506
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Chase Logan Guzman
lllllllllllllllllllllDefendant - Appellant
___________________________
No. 18-2202
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Justin Thomas Morales, also known as Speedy
lllllllllllllllllllllDefendant - Appellant
____________
Appeals from United States District Court
for the District of South Dakota - Sioux Falls
____________
Submitted: February 13, 2019
Filed: June 13, 2019
____________
Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
____________
KELLY, Circuit Judge.
As part of an investigation of large-scale methamphetamine trafficking, law
enforcement officers pulled over Justin Morales and Chase Guzman in a traffic stop
and found a pound of marijuana and a firearm on Guzman. Officers obtained a search
warrant and subsequently found more marijuana and two pounds of methampheta-
mine inside a home connected to the trafficking. Morales and Guzman were indicted
on one count of conspiracy to distribute methamphetamine, and Guzman was indicted
on one count of using or carrying a firearm during and in relation to a drug trafficking
crime. After the district court1 denied their respective motions to suppress evidence,
Guzman conditionally pleaded guilty to both counts and Morales proceeded to trial
where the jury found him guilty. Defendants separately appeal the district court’s
denial of their motions to suppress and raise various sentencing and evidentiary
issues. We consolidated the appeals, and for the reasons explained below, we affirm.
I
At the suppression hearing, various law enforcement officers testified to the
following facts. In March 2016, a confidential informant (CI) told agents from the
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) that Morales would be
trafficking firearms and large quantities of methamphetamine from Wichita, Kansas,
1
The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
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to Sioux Falls, South Dakota, and the surrounding area. According to the CI, Morales
asked him to help with the transportation and local distribution of the drugs. ATF
Special Agents Emmet Warkenthien and Brent Fair opened an investigation.
Over the next several months, ATF agents amassed evidence of Morales’s
methamphetamine trafficking. The agents recorded more than forty phone calls
between the CI and Morales discussing methamphetamine “buys.” Some of these
purchases came to fruition. In April 2016, for instance, ATF agents arranged for the
CI to conduct a controlled buy of approximately four ounces of methamphetamine
from Morales in exchange for $5,000.
In the early morning hours of September 22, 2016, the CI contacted Warkenthi-
en with information that would lead to Morales’s and Guzman’s arrests later that day.
The CI told Warkenthien that Morales and Guzman had arrived in Sioux Falls from
Witchita to sell methamphetamine and marijuana. The CI relayed that Morales and
Guzman were staying at the Days Inn hotel in Sioux Falls and that the CI planned to
meet with Morales that morning to discuss the CI’s involvement in the drug
trafficking. Fair drove to the Days Inn to set up surveillance.
As anticipated, the CI spent a large part of the morning meeting with Morales
and Guzman at the Days Inn and some area businesses. The CI recorded many of the
group’s conversations. In one of these conversations, Morales told the CI that he was
storing two pounds of methamphetamine and three pounds of marijuana at the home
of Jerri Young Running Crane in Sioux Falls. Morales also told the CI that he had
a 9mm Glock 19 semiautomatic pistol that Guzman intended to “take with him” for
“protection” during drug sales.
While stationed at the Days Inn parking lot that morning, Fair observed two
people get out of a Kansas-plated minivan registered to Jacqueline Morales and get
into the CI’s vehicle. Fair personally identified one of the individuals as Justin
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Morales based on photos that he had seen previously. Other agents also stationed at
the hotel identified the other individual as Guzman and communicated that
information via radio to the rest of the investigation team. Morales, Guzman, and the
CI left the Days Inn parking lot but returned sometime later, still in the CI’s vehicle.
All three individuals exited the CI’s vehicle and accessed a Kansas-plated pickup
truck registered to Guzman. Agents then saw Morales and Guzman get into the
minivan and drive off.
Guzman and Morales drove to Young Running Crane’s home, where agents
had also set up surveillance. An agent positively identified Morales and Guzman
getting out of the minivan and entering the home. Some time later, Sioux Falls
Narcotics Detective Adam Buiter observed Morales and Guzman—both of whom he
identified based on pictures he had previously seen—exit the home and get into the
minivan once more. Buiter relayed this information to the rest of the investigation
team.
The minivan left Young Running Crane’s home, and several members of the
surveillance team followed in unmarked cars. The minivan’s “circuitous” driving
around area businesses made the agents concerned that their surveillance had been,
or soon would be, detected. So they decided to enlist the assistance of the South
Dakota Highway Patrol to conduct a “ruse” stop of the vehicle in a marked patrol car
based on the evidence of drugs and firearms they had already collected that day. The
intent of such a stop is to maintain the appearance of an everyday traffic stop so as
to not alert subjects of a narcotics investigation that they may soon be arrested, and
to minimize dangers that may arise when armed suspects are stopped by unmarked
law enforcement vehicles.
Detective Dan Christiansen, who was part of the surveillance team, contacted
State Trooper Andrew Steen to assist with the stop. Christiansen told Steen that the
minivan’s occupants possessed drugs and firearms. Steen was instructed that he did
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not have wait to develop his own probable cause for a traffic violation before
stopping the minivan but that he should make the stop look routine.
Steen stopped the minivan, and Sioux Falls Police Officer Jason Christensen
arrived to provide assistance. Steen approached the driver’s side and Christensen
approached the passenger’s side. Steen falsely told Morales, who was driving, that
his brake light was out and asked him to step out of the vehicle. For his part,
Christensen asked Guzman, who was sitting in the passenger seat, also to exit. When
Guzman obliged, Christensen saw a small plastic bag containing marijuana between
the passenger seat and the doorsill. The officers placed Morales and Guzman in
handcuffs. Steen and Christensen searched the minivan and found a pound of
marijuana, various cell phones, cash, and a small digital scale that tested positive for
methamphetamine. Searches of Guzman’s person revealed a loaded Glock 19,
approximately 29 grams of methamphetamine, and drug paraphernalia.
Based on this evidence, Warkenthien obtained a search warrant for, among
other things, Young Running Crane’s home and the Kansas-plated pickup truck
registered to Guzman. A search of the home produced two pounds of marijuana and
two pounds of methamphetamine. In the pickup truck, law enforcement officers
found ammunition for the Glock 19.
A superseding indictment charged Guzman and Morales with one count of
conspiracy to distribute 500 grams or more of methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1) and 846. It also charged Guzman with one count of using or
carrying a firearm during and in relation to a drug trafficking crime, in violation of
18 U.S.C. § 924(c)(1)(A).
On appeal, both defendants challenge the district court’s denial of their
respective motions to suppress and raise various sentencing issues. Morales also
challenges one of the district court’s pretrial evidentiary rulings. We address the
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district court’s denial of the motions to suppress first, followed by Guzman’s
sentencing challenge and Morales’s evidentiary and sentencing arguments.
II
“We review the denial of a motion to suppress de novo but the underlying
factual determinations for clear error, giving due weight to inferences drawn by law
enforcement officials.” United States v. Walker, 840 F.3d 477, 483 (8th Cir. 2016)
(quoting United States v. Hurd, 785 F.3d 311, 314 (8th Cir. 2015)). “To conclude
that findings of fact are clearly erroneous, the court’s review of the record should
leave a definite and firm conviction that a mistake has been made,” and “the appellate
court should give particular deference to findings based upon credibility determina-
tions.” Prince v. Sargent, 960 F.2d 720, 720–21 (8th Cir. 1992) (per curiam). We
will affirm the denial of a motion to suppress unless the decision “is unsupported by
substantial evidence, is based on an erroneous interpretation of the law, or it is clear,
based on the entire record, that a mistake was made.” Walker, 840 F.3d at 483.
The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. Const. amend. IV. A traffic stop constitutes a seizure and therefore must be
supported at least by reasonable suspicion. United States v. Givens, 763 F.3d 987,
989 (8th Cir. 2014). Reasonable suspicion exists “when a law enforcement officer
has ‘a particularized and objective basis for suspecting the particular person stopped
of criminal activity.’” Navarette v. California, 134 S. Ct. 1683, 1687 (2014) (quoting
United States v. Cortez, 449 U.S. 411, 417–18 (1981)). In deciding whether there is
reasonable suspicion, “an officer may rely on information provided by other officers
as well as any information known to the team of officers conducting the investiga-
tion.” United States v. Mora-Higuera, 269 F.3d 905, 910 (8th Cir. 2001) (quoting
United States v. Thomas, 249 F.3d 725, 728 (8th Cir. 2001)); see also Navarette, 134
S. Ct. at 1688.
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Morales and Guzman argue that Steen’s stop of the minivan violated their
Fourth Amendment rights and that all evidence obtained as a result of that stop must
be suppressed as fruit of the poisonous tree. They contend that they were not
specifically identified as the occupants of the van before the stop, depriving Steen of
reasonable suspicion to believe the minivan’s occupants were engaged in criminal
activity. The district court found that before agents directed Steen to stop the
minivan, they had “positive[ly] identifi[ed] that the occupants of the grey van were
in fact [Morales] and [Guzman].” This finding of fact is amply supported by the
record.
Fair’s and Buiter’s testimony at the suppression hearing established that agents
identified Morales and Guzman at various points throughout the day and specifically
as the two defendants drove away from Young Running Crane’s home shortly before
Steen’s traffic stop. According to Fair, immediately before Morales and Guzman
drove to the home from the Days Inn parking lot, agents identified Morales and
Guzman getting into the minivan. When the minivan arrived at the home, another
agent identified Morales and Guzman as exiting the minivan and entering the
residence. Finally, Buiter personally saw Morales and Guzman—both of whom he
positively identified—exit the home and get into the minivan once more, information
he communicated to the rest of the surveillance team before Steen was directed to
make the stop.
In essence, Morales and Guzman ask us on appeal to disbelieve the agents’
testimony, but as we have stated many times, “[a] credibility determination made by
a district court after a hearing on the merits of a motion to suppress is ‘virtually
unassailable on appeal.’” United States v. Frencher, 503 F.3d 701, 701 (8th Cir.
2007) (quoting United States v. Guel-Contreras, 468 F.3d 517, 521 (8th Cir. 2006)).
Accordingly, the district court did not clearly err in finding that law enforcement
officers knew that Morales and Guzman were inside the minivan before it was
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stopped.2 We therefore affirm the district court’s denial of each defendant’s motion
to suppress.
III
Guzman’s advisory range under the U.S. Sentencing Guidelines was 135 to 168
months’ imprisonment for the drug offense, subject to a 120-month statutory
mandatory minimum. His firearms offense subjected him to an additional mandatory
minimum sentence of 60 months’ imprisonment, to be served consecutively as
required by statute.3 At sentencing, Guzman urged the district court to apply the
“rationale” of Dean v. United States, 137 S. Ct. 1170 (2017), to vary below the
120-month mandatory minimum sentence on the drug offense by taking into account
that he must additionally serve the 60-month sentence for the firearms offense. The
2
Without much meaningful analysis, Morales and Guzman also contend that
even if they were positively identified as occupying the van before the stop, Steen
still lacked reasonable suspicion to stop them. They do not dispute that Steen learned
the details of the investigation from Christiansen, so we construe their argument to
be that the facts Steen knew were legally insufficient to support reasonable suspicion.
We reject that argument. The information provided by the CI (much of which was
corroborated by the investigation team), the controlled buy between Morales and CI,
the recorded conversations between the two, and the investigation team’s own
observations gave Steen reasonable suspicion to believe Morales and Guzman were
engaged in drug-related criminal activity. See, e.g., Navarette, 134 S. Ct. at 1687–92
(reaffirming the well-established rule that even the statements of an anonymous
tipster can provide reasonable suspicion to conduct an investigatory stop of a car);
United States v. Caswell, 436 F.3d 894, 898 (8th Cir. 2006) (explaining that an
officer may use a reliable confidential informant’s tip to establish the more
demanding standard of probable cause).
3
Under § 924(c), a separate term of imprisonment must be imposed where the
defendant, “during and in relation to any . . . drug trafficking crime . . . uses or carries
a firearm.” This separate term is “in addition to the punishment provided for such
. . . drug trafficking crime.” 18 U.S.C. § 924(c)(1)(A); see also id. § 924(c)(1)(D)(ii).
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district court rejected Guzman’s argument but varied downward to the statutory
minimum on the drug offense and imposed a total sentence of 180 months.
On appeal, Guzman argues that the district court misinterpreted Dean in
concluding that the court lacked the authority to vary below the statutory minimum
on the drug offense. The government counters that Guzman’s challenge is barred by
the appeal waiver in his plea agreement. Guzman acknowledges that his plea
agreement waived “his right to appeal any non-jurisdictional issues,” except, as
relevant here, a sentencing decision involving an upward departure or upward
variance. But he contends that the government forfeited its right to enforce the appeal
waiver by failing to object at the district court when Guzman “preserve[d]” the Dean
issue for appeal.
Courts seem to disagree on whether the government forfeits its right to enforce
an appeal waiver if it fails to object before the district court to a defendant’s intent to
appeal or the district court’s advisement that the defendant retains the right to appeal.
Compare United States v. Alford, 147 F. App’x 45, 49 (10th Cir. 2005) (concluding
that the government did not forfeit right, as “the district court does not decide the
effect of any waiver on appellate rights—[the court of appeals] does”), with United
States v. Mercado, 525 F. App’x 574, 575 (9th Cir. 2013) (“[T]he government
forfeited its right to enforce the waiver by failing to object to the district court’s
unqualified advisement that [defendant] retained the right to appeal the court’s
judgment.”). We decline to weigh in here, because, assuming for the sake of
argument that the government forfeited its right to enforce the appeal waiver,
Guzman’s sentencing challenge fails on the merits.
Contrary to Guzman’s contentions, Dean does not authorize district courts to
impose a sentence below a statutory mandatory minimum. Dean merely held that
courts can consider the § 924(c) mandatory consecutive sentence when deciding
whether to vary downward from the Guidelines range applicable to the other counts
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of conviction. 137 S. Ct. at 1176–77. Therefore, Dean has no application here. We
accordingly affirm Guzman’s sentence.
IV
A
Morales first challenges the district court’s denial of his motion under Federal
Rules of Evidence 404(b) and 403 to exclude at trial evidence of uncharged conduct,
specifically, that he possessed, used, accessed, or sold marijuana and firearms. The
district court agreed with the government that evidence referencing Guzman’s Glock
19 and a different gun that another co-conspirator allegedly possessed at Young
Running Crane’s home was admissible because it was probative of, and “intertwined”
with, the methamphetamine conspiracy. Specifically, the district court found that
testimony about those two firearms indicated that Morales sought “to keep the drugs
safe” and to ensure that nothing would go “wrong” during the drug deals. The district
court did, however, preclude all other references to firearms. It also found that
evidence of marijuana was similarly “inextricably intertwined” with the methamphet-
amine conspiracy, in particular because its discovery in the minivan “then led to the
search warrant of [Young Running Crane’s] residence where [officers] found
methamphetamine and more marijuana.” And the district court found that any danger
of unfair prejudice that admission of the evidence could pose to Morales was
outweighed by the evidence’s probative value. On appeal, we review a district
court’s evidentiary rulings for an abuse of discretion. United States v. Thomas, 760
F.3d 879, 883 (8th Cir. 2014).
Rule 404(b) “excludes evidence of specific bad acts used to circumstantially
prove a person has a propensity to commit acts of that sort.” United States v.
Johnson, 439 F.3d 884, 887 (8th Cir. 2006). But this rule does not apply to evidence
“intrinsic” to the charged offense. Thomas, 760 F.3d at 883–84. “[I]ntrinsic
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evidence[] is evidence of wrongful conduct other than the conduct at issue offered for
the purpose of providing the context in which the charged crime occurred.” United
States v. Campbell, 764 F.3d 880, 888 (8th Cir. 2014) (cleaned up). It “includes both
evidence that is inextricably intertwined with the crime charged as well as evidence
that merely ‘completes the story’ or provides context to the charged crime.” United
States v. Young, 753 F.3d 757, 770 (8th Cir. 2014). Intrinsic evidence need not be
“necessary to the jury’s understanding of the issues” to be admissible. Id. Of course,
when admitting intrinsic evidence, “[t]he dictates of [R]ule 403 must still be applied
to ensure that the probative value of this evidence is not outweighed by its prejudicial
value.” United States v. Bass, 794 F.2d 1305, 1312 (8th Cir. 1986). District courts
have “broad discretion” in admitting intrinsic evidence and we will reverse “only if
such evidence clearly had no bearing on the case and was introduced solely to prove
the defendant’s propensity to commit criminal acts.” Thomas, 760 F.3d at 883
(quoting United States v. Katz, 445 F.3d 1023, 1029 (8th Cir. 2006)).
Here, the district court did not abuse its discretion in admitting as intrinsic
evidence the references to Morales’s involvement with marijuana and two firearms.
The district court could reasonably conclude that such evidence was “inextricably
intertwined” with the methamphetamine conspiracy, or that at the very least it
completed the story or provided context to that crime. See id. at 884–85 (affirming
admission of evidence of defendant’s distribution of crack cocaine, although he was
only charged with heroin-related offenses). At the Days Inn, Morales told the CI that
there was both marijuana and methamphetamine at Young Running Crane’s home,
and that a co-conspirator there “ha[d] a pistol guarding the meth.” That same day,
agents heard that Guzman possessed a Glock 19 intended for “protection” during drug
sales. This fact motivated the agents, at least in part, to seek assistance in stopping
the minivan with a marked patrol car. Marijuana discovered in the minivan, in turn,
led to the search of Young Running Crane’s home, where law enforcement officers
ultimately found the methamphetamine. Other drug- or weapons-related evidence is
not invariably admissible as intrinsic evidence in a drug trafficking prosecution, but
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the district court was within its discretion in admitting the evidence here. And
“recogniz[ing] the overall strength of the government’s case and not[ing] that this
evidence played only a small part,” we also conclude that the evidence was properly
admitted under Rule 403. United States v. O’Dell, 204 F.3d 829, 834 (8th Cir. 2000).
B
Morales’s advisory range under the Guidelines was life imprisonment. The
district court varied downward and imposed a 360-month sentence. On appeal,
Morales argues that the district court procedurally erred in calculating his base
offense level and in applying four sentencing enhancements. We address each of his
challenges in turn, reviewing the district court’s factual findings for clear error and
its construction and application of the Guidelines de novo, United States v. Sykes,
854 F.3d 457, 459 (8th Cir. 2017), keeping in mind that “[t]he Government must
prove by a preponderance of the evidence each of the facts necessary to establish a
sentencing enhancement,” United States v. Razo-Guerra, 534 F.3d 970, 975 (8th Cir.
2008).
First, Morales argues that the district court’s finding that he was responsible
for 31,289.36 kilograms of marijuana equivalent, resulting in a base offense level of
36 under Guidelines § 2D1.1(c)(2), was clearly erroneous. Before sentencing, an
initial presentence investigation report (PSR) recommended a base offense level of
34 based on the 19,951.36 kilograms of marijuana equivalent that law enforcement
agents actually confiscated throughout the investigation. The government objected,
arguing that additional quantities beyond “those amounts that ended up in the
possession of law enforcement” should be included in the total drug amount.
Specifically, it argued that the 566.9 grams of methamphetamine (11,338 kilograms
of marijuana equivalent) that Morales had offered to sell the CI in April 2016 should
also be included. The probation office agreed and amended the PSR, raising the total
drug amount to 31,289.36 kilograms of marijuana equivalent and the base offense
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level to 36. Morales objected, arguing that there was “no proof” that he “had access
to th[at] quantity” at his April meeting with the CI.
At the sentencing hearing, Warkenthien testified about Morales’s insistence
that the CI purchase the 566.9 grams of methamphetamine. Warkenthien testified that
Morales pushed for the CI to buy that amount as part of Morales’s plans to sell only
large quantities of methamphetamine. According to Warkenthien, however, the ATF
did not make that purchase because the Bureau’s internal rules would have required
Morales’s immediate arrest, effectively shutting down the investigation before agents
discovered the identity of Morales’s source. Warkenthien’s testimony was consistent
with the CI’s trial testimony that Morales asked him to purchase that quantity of
methamphetamine for $16,500. At the conclusion of the sentencing hearing, the
district court overruled Morales’s objection to the 566.9 grams and adopted the
amended PSR’s drug quantity calculation.
We conclude that the district court did not clearly err in including the 566.9
grams of methamphetamine in the final drug amount. Under the Guidelines, even
drugs that were not confiscated can be attributed to a defendant where the amount
seized does not reflect the scale of the offense. § 2D1.1 cmt. n.5. In such a case, “the
court shall approximate the quantity of the controlled substance,” id., and may
consider all relevant information so long as it is sufficiently reliable, see United
States v. Sicaros-Quintero, 557 F.3d 579, 582 (8th Cir. 2009). In this case, more than
sufficient evidence, including Warkenthien’s testimony at the sentencing hearing,
supports a finding that Morales could have provided the 566.9 grams of methamphet-
amine to the CI had the ATF agreed to purchase it.
Based on a statement the district court made at the sentencing hearing, Morales
nevertheless argues that the court clearly erred in including the 566.9 grams. When
ruling on the final drug amount, the court stated, “I find that all of the quantities set
forth in [the amended PSR] . . . are amounts that were actually confiscated.” But the
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government never argued that the 566.9 grams were seized. To the contrary, it
expressly urged the district court to include that amount despite the fact that it had not
been confiscated. When the basis of the parties’ point of contention is this clear, we
would be remiss to conclude that the district court ruled on something other than the
precise issue before it. Cf. United States v. Miles, 499 F.3d 906, 909–10 (8th Cir.
2007) (in sentencing context, where the record made clear that district court listened
to parties’ arguments and considered supporting evidence, court of appeals would not
find that district court failed to consider issue). There was ample evidence to support
the district court’s drug quantity calculation, and its passing erroneous remark that all
the drugs were “confiscated” does not alter the record on this issue. It was undisputed
that the 566.9 grams were not in fact confiscated. Accordingly, we find no clear
error. See United States v. Lewis-Zubkin, 907 F.3d 1103, 1104 & n.2 (8th Cir. 2018)
(per curiam) (affirming district court’s application of a sentencing enhancement
despite the district court’s “passing remark” erroneously suggesting that defendant
bore the burden of proof as to the enhancement’s application).
Next, Morales argues that the district court clearly erred in applying the two-
level enhancement under § 2D1.1(b)(1) for possession of a dangerous weapon
(including a firearm). For this enhancement to apply, “[t]he firearm must be
connected with the criminal activity.” United States v. Savage, 414 F.3d 964, 966
(8th Cir. 2005). “[T]he government must show that ‘(1) the gun was possessed and
(2) it was not clearly improbable that the weapon was connected to the drug
offense.’” United States v. Renteria-Saldana, 755 F.3d 856, 859 (8th Cir. 2014)
(quoting United States v. Anderson, 618 F.3d 873, 880 (8th Cir. 2010)). The district
court found that two independent grounds justified the enhancement: (1) trial
evidence that Morales “rack[ed] a gun” in the CI’s presence at the Days Inn on
September 22 while the two discussed the sale of drugs; and (2) officers’ discovery
of the Glock 19 on Guzman’s person the day of Morales’s arrest. Morales does not
contest the second justification, but argues that trial evidence was “inconclusive” as
to the first. We need not address his argument, as Guzman’s possession of the gun
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in the minivan Morales was driving shortly after Morales discussed that very weapon
with the CI is sufficient to justify the enhancement. See United States v. Lopez, 384
F.3d 937, 944 (8th Cir. 2004) (per curiam) (explaining that the enhancement applies
if “the defendant knew or should have known based on specific past experiences with
the co-conspirator that the co-conspirator possessed a gun and used it during drug
deals”); see also United States v. Muniz Ochoa, 643 F.3d 1153, 1157 (8th Cir. 2011).
Accordingly, the district court did not clearly err in applying the enhancement.
Morales next contends that the district court clearly erred in applying a two-
level enhancement under § 2D1.1(b)(2). That enhancement applies “[i]f the
defendant used violence, made a credible threat to use violence, or directed the use
of violence.” The district court found that Morales used social media messages to
threaten physical violence against at least three different people; specifically, the
court found that “there [were] individuals that owed money to the defendant and . . .
if they didn’t pay . . . they would suffer physical violence.” Morales argues that the
messages lacked credible threats and cannot be linked to the drug conspiracy. His
arguments are belied by the record. In the messages, Morales threatened to “smash”
the face of one of the recipients and, in the context of drug-trafficking activity, told
another to “[g]et [his] money rite [sic]” because Morales was “trigger happy.”
Warkenthien testified that in at least one of the messages, Morales expressed
displeasure with the recipient’s “method of dealing meth.” Based on this evidence,
the district court did not clearly err in finding that Morales made a credible threat to
use violence in connection with the drug conspiracy. See, e.g., Lewis-Zubkin, 907
F.3d at 1104 (explaining that enhancement may be applied even where the threatened
violence is not ultimately carried out).
Finally, Morales argues that the district court clearly erred in applying a four-
level enhancement under § 3B1.1(a), which applies “[i]f the defendant was an
organizer or leader of a criminal activity that involved five or more participants or
was otherwise extensive.” To justify the enhancement, the government must prove
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two elements: (1) that “the defendant organized or led at least one other participant
in the criminal activity”; and, as relevant here, (2) that “the criminal activity involved
at least five participants.” United States v. Musa, 830 F.3d 786, 788 (8th Cir. 2016).
The district court found that Morales was a “leader or organizer” and that there were
five participants involved in the criminal activity: (1) Morales, (2) Guzman, (3) a
third co-defendant, (4) Young Running Crane, and (5) the source of the methamphet-
amine. Morales challenges only the five-participant determination, arguing that
Young Running Crane and his drug source were improperly classified as participants.
The Guidelines define “participant” as “a person who is criminally responsible
for the commission of the offense,” even if he or she was not convicted. § 3B1.1 cmt.
n.1. Importantly here, “[t]he term ‘offense’ encompasses not only the elements and
acts cited in the count of conviction, but also all relevant conduct constituting the
‘contours of the underlying scheme itself.’” United States v. Starks, 815 F.3d 438,
441 (8th Cir. 2016) (quoting United States v. Rosnow, 9 F.3d 728, 730 (8th Cir.
1993)). And to be “criminally responsible” under the Guidelines, an individual need
only “give ‘knowing aid in some part of the criminal enterprise.’” Id. (quoting United
States v. Hall, 101 F.3d 1174, 1178 (7th Cir. 1996)). Contrary to Morales’s
contention, an individual need not be guilty of the precise offense of conviction—or
even charged—to be found “criminally responsible” under § 3B1.1. See, e.g., Starks,
815 F.3d at 441; United States v. Mendoza, 341 F.3d 687, 693 (8th Cir. 2003).
The district court did not clearly err in finding that Young Running Crane and
Morales’s source were criminally responsible for relevant conduct. The government
presented evidence that Young Running Crane knowingly permitted Morales,
Guzman, and the third co-conspirator to store a “brick-size” quantity of marijuana—at
least one pound—at her home shortly before the conspirators’ arrest. The PSR, as
adopted by the district court, included that marijuana as relevant conduct, which
Morales does not contest on appeal. See United States v. Gordon, 510 F.3d 811, 817
(8th Cir. 2007) (“The district court may consider as relevant conduct all drugs that the
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government shows by a preponderance of the evidence were a part of the same course
of conduct or common scheme as the conspiracy . . . .”). Similarly, ample evidence
supports the district court’s conclusion that Morales’s source was a participant. We
have held that an ongoing supplier relationship may establish participant status under
§ 3B1.1(a). See Sykes, 854 F.3d at 460. Warkenthien’s testimony supports a finding
that Morales had an ongoing relationship with at least one source who was behind
Morales’s plan to sell large quantities of methamphetamine in the Sioux Falls area.
For instance, Warkenthien testified that it angered Morales that the CI would not
purchase the 566.9 grams of methamphetamine, as Morales “was trying to show . . .
his source that he could move this kind of quantity . . . in Sioux Falls, and they could
get rid of it and bring up large quantities quickly to make more money.” In light of
this evidence, the district court did not clearly err in applying the four-level
enhancement under § 3B1.1(a).
For all of the foregoing reasons, we affirm Morales’s conviction and sentence.
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