United States v. Gregorio Ramirez-Maldonado ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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Nos. 18-2068, 18-2088, 18-2090
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Gregorio Ramirez-Maldonado;
Alejandro Llamas-Delgado;
Erick Parra-Salazar
lllllllllllllllllllllDefendants - Appellants
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Appeals from United States District Court
for the District of Minnesota
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Submitted: March 12, 2019
Filed: June 26, 2019
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Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
Alejandro Llamas-Delgado (“Llamas”) and Erick Parra-Salazar (“Parra”)
appeal their convictions for drug trafficking crimes. Parra and another co-defendant,
Gregorio Ramirez-Maldonado (“Ramirez”), appeal the sentences the district court1
imposed after trial. We affirm.
I. Background
In May 2017, law enforcement officials arrested Llamas, Ramirez, and Parra
following an extensive investigation into a suspected drug conspiracy to distribute
substantial quantities of methamphetamine and cocaine. Because both Llamas and
Parra challenge the sufficiency of the evidence, many of the facts introduced at trial
regarding that investigation are recounted below.
A. Facts
For purposes of this case, the investigation began in 2014 when the Drug
Enforcement Administration (“DEA”) intercepted a transport truck in California that
was hauling a 2005 Mini Cooper automobile. Earlier, Omar Ornelas-Garcia
(“Ornelas”) and A.L., a confidential informant who testified at trial, had met Llamas
at an auto body shop in southern California that had constructed hidden compartments
in the Mini Cooper. A.L. later picked up the Mini Cooper after Ornelas told him that
he had loaded it with 22 pounds of methamphetamine and seven or eight kilograms
(15.4 or 17.6 pounds) of cocaine. A.L. met with a truck driver to load the Mini
Cooper onto the transport truck and subsequently sent a text to Llamas to tell him the
Mini Cooper was on its way. The DEA learned about the transport truck and set up
a “controlled delivery” of the Mini Cooper. The DEA met the truck driver at a
parking lot in Plymouth, Minnesota, unloaded the vehicle, parked it, and disabled it.
The truck driver then called someone named “Oscar,” whom he had been told to call
when he arrived.
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
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The DEA encountered Llamas during the controlled delivery of the Mini
Cooper. Almost an hour after the truck driver’s phone call to “Oscar,” Llamas and
a woman pulled into the parking lot. Llamas met with the truck driver, put California
license plates on the Mini Cooper, and unsuccessfully tried to start it. Llamas
eventually returned with several other people and a tow truck. They loaded the Mini
Cooper on the tow truck and departed. The DEA did not arrest anyone but had local
police seize the Mini Cooper from the tow truck.
In September 2015, the DEA again saw Llamas when agents were at the
Albertville Outlet Mall just west of the Twin Cities. Llamas sat on a park bench
holding two cell phones. A short time later, Eric Winter drove into the parking lot.
Llamas walked directly to Winter’s vehicle and got into the front passenger seat. A
few minutes later, Llamas got out of the vehicle, walked to his own vehicle, and
drove off. Police officers stopped Llamas and Winter. The officers found about an
ounce of methamphetamine in the center console of Winter’s vehicle and $1,880 cash
on Llamas. The record indicates they arrested Llamas but does not indicate whether
any further proceedings occurred.
In January 2017, police officers began extensive surveillance that included
watching two houses linked to Llamas. These houses were a large, single-family
home on Bellvue Lane in Brooklyn Center (the “Bellvue House”) and a small
rambler-style home on Dupont Avenue in Minneapolis (the “Dupont House”). The
officers also identified several vehicles linked to Llamas, including a Chevrolet
Silverado and a GMC Sierra. Between January and May 2017, Llamas often drove
between the two houses. Llamas would meet with various people and engage in
“short term traffic,” only staying at residences for a short time. The officers testified
Llamas would travel to locations using non-direct routes and side streets and would
circle around the block in a manner consistent with one conducting counter-
surveillance. They did not observe Llamas engage in any conventional work
activities.
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In February 2017, police officers encountered Llamas and Ramirez when
tracking a cell phone that Llamas has previously contacted. The officers had set up
surveillance at a travel plaza near Albert Lea, Minnesota. They spotted Ramirez
driving a Honda registered to Jacqueline Myra Machuca-Arana (“Machuca”) with a
passenger they later identified as Machuca. The officers followed the vehicle to the
Dupont House. Llamas arrived and met with Machuca and Ramirez. Machuca
returned to the Honda and drove into the garage. Soon after, Llamas left the
residence carrying a duffle bag and headed toward the garage. Llamas then drove
away in another vehicle, while Ramirez and Machuca drove off in Llamas’s
Chevrolet. Ramirez and Machuca returned to the Dupont House later that night. The
next evening, the officers located Ramirez and Machuca out driving the Honda,
stopped the car, and seized $20,000 in cash from a modified storage area in the rear
seat.
In March 2017, police officers received information from investigators in
California that Llamas would be meeting with a money courier. The officers tracked
Llamas and an unknown male to a hotel near the Mall of America in Minnesota.
They also noted a car parked at the hotel: a Honda Odyssey with California plates
registered to Hubert Cuevas. Cuevas and Llamas talked 28 times by phone that day.
Two days later, officers stopped Cuevas in the Honda Odyssey in California and
seized $53,000 in cash from a hidden compartment in his vehicle.
In April 2017, police officers learned about a call between Llamas and Ornelas,
who they suspected was a drug associate of Llamas. During the call, Ornelas used
coded language interpreted by police officers to mean suppliers in Mexico had
stopped sending drugs because the suppliers had not been paid. Ornelas and Llamas
discussed a plan for Llamas to provide money to a courier in Minnesota to settle the
debt. During a later call, Ornelas told Llamas the courier was in the area, and Llamas
agreed to meet the courier.
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That same afternoon, police officers intercepted three phone calls and some
text messages between Llamas and Ishmael Torrecillas, the courier. The two men
agreed to meet at the Mall of America. Llamas left the Bellvue House in the
Chevrolet. When Llamas arrived, Torrecillas and his girlfriend got into Llamas’s
vehicle. The officers did not follow Llamas after that meeting.
In May 2017, a pole camera at the Dupont House recorded Parra and Ramirez
arriving in Ramirez’s Cadillac Escalade. Llamas met Parra and Ramirez there. Parra
and Ramirez then drove the Cadillac to the Bellvue House, and Llamas followed in
a separate vehicle. Parra drove the Cadillac into the Bellvue garage and the door
closed. About twenty minutes later, Parra backed the Cadillac out, and he and
Ramirez returned to the Dupont house. Ramirez later told police two kilograms of
cocaine had been concealed behind the headlights of the Cadillac.
On May 15, 2017, police officers arrested Llamas, Ramirez, and Parra, and
searched several locations linked to the investigation. At the Bellvue House, police
found Llamas, roughly $43,000 in cash, a cell phone, vehicle keys, and a permanent
resident card with Llamas’s photograph. At the Dupont House, the officers found
Parra and Ramirez, drugs, and extensive drug paraphernalia. It appeared no one
resided at the house, as there were no pictures on the walls, no food in the
refrigerator, no dining utensils, and no dry goods in the kitchen. The officers seized
about 139 grams of cocaine sitting on a top shelf in the kitchen, about 252 grams of
cocaine in the kitchen broiler, 28 pounds of marijuana in the basement, a digital scale,
disposable latex gloves, a handgun, food saver bags, a heat-sealing machine,
packaging tape, a money counting machine, and two kilogram-sized wrappers. They
also found hidden compartments behind the front headlights of the Cadillac.
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B. Procedural History
In June 2017, a grand jury indicted Llamas, Ramirez, and Parra on two counts:
(1) conspiracy to distribute 500 grams or more of methamphetamine and 500 grams
or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846; and
(2) possession with intent to distribute 500 grams or more of cocaine, in violation of
21 U.S.C. § 841(a)(1). At trial in December 2017, a jury convicted all three
defendants on both counts. The jury found, however, that Ramirez’s and Parra’s
conduct involved no methamphetamine and that Parra’s conduct involved less than
500 grams of cocaine.
The district court sentenced Llamas to 300 months of imprisonment. Llamas
does not challenge his sentence on appeal.
The district court sentenced Parra to 41 months of imprisonment. The district
court concluded based on the evidence it heard at trial that Parra was responsible for
more than 500 grams of drugs. Thus, it calculated the U.S. Sentencing Guidelines
Manual (“Guidelines” or “U.S.S.G.”) range as 51 to 63 months. The district court
then varied downward to 41 months. The district court referenced this was the
bottom of the “imaginary” Guidelines range that would apply if the sentence were
based on less than 500 grams of drugs and explained it was varying downward
because it thought the applicable Guidelines range was “more than is necessary” for
Parra.
The district court sentenced Ramirez to a bottom-of-the-Guidelines sentence
of 63 months of imprisonment. Ramirez argued for application of the safety valve
provision and a reduction in his sentence based on U.S.S.G. § 3B1.2 because he had
only a minor role in the conspiracy. The district court rejected the argument. It noted
that Ramirez recruited Parra to join the conspiracy. The district court then determined
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63 months was appropriate because of Ramirez’s immigration status, his family
situation, and because the Government did not ask for more.
All three defendants timely appealed.
II. Analysis
Because Llamas and Parra challenge the sufficiency of the evidence, we
address the evidence at trial for those two defendants before addressing the two
sentencing issues.
A. Sufficiency of the Evidence
“We review de novo the sufficiency of the evidence to sustain a conviction,
viewing the evidence in a light most favorable to the verdict and accepting all
reasonable inferences supporting the verdict.” United States v. Colton, 742 F.3d 345,
348 (8th Cir. 2014). This is a strict standard of review, and we will overturn a
conviction “only if no reasonable jury could have found [the defendant] guilty beyond
a reasonable doubt.” Id. (quoting United States v. Bell, 477 F.3d 607, 613 (8th Cir.
2007)). “It is well-established that ‘the uncorroborated testimony of an accomplice
is sufficient to sustain a conviction if the testimony is not otherwise incredible or
unsubstantial on its face.’” United States v. Vaughn, 410 F.3d 1002, 1004 (8th Cir.
2005) (quoting United States v. Dunn, 494 F.2d 1280, 1281–82 (8th Cir. 1974)).
To establish a defendant’s membership in a conspiracy, the Government needs
to prove “(1) the existence of an agreement among two or more people to achieve an
illegal purpose, (2) the defendant’s knowledge of the agreement, and (3) that the
defendant knowingly joined and participated in the agreement.” United States v.
Peebles, 883 F.3d 1062, 1067–68 (8th Cir. 2018) (quoting United States v. Whirlwind
Soldier, 499 F.3d 862, 869 (8th Cir. 2007)). To establish a defendant’s possession
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of illegal drugs with the intent to distribute, the Government needs to prove the
defendant (1) knowingly possessed the drug in question and (2) intended to distribute
it. See id. at 1068.
The evidence of Llamas’s guilt was overwhelming. First, Llamas participated
in using a modified Mini Cooper to transport drugs. Llamas protests that evidence
of his role was primarily based on the confidential informant’s testimony, but his
participation in picking up the Mini Cooper confirms his role in that transaction.
Second, police officers’ surveillance of the outlet mall and subsequent discovery of
drugs with Winter could allow a reasonable jury to infer that Llamas sold drugs to
Winter. Third, Llamas was repeatedly present at the Dupont House where police
officers found drugs (and no evidence anyone lived there). While this is not an
exhaustive recollection of the evidence against Llamas, this evidence alone prevents
any reasonable argument that the evidence was insufficient to convict Llamas.
The evidence of Parra’s role in the conspiracy to distribute drugs was also
sufficient. First, circumstantial evidence indicated Parra helped Ramirez transport
two kilograms of cocaine and distribute it to Llamas for further distribution. Second,
police officers found Parra at the House with drugs and other drug paraphernalia.
This evidence, taken in the light most favorable to the verdict, supports the reasonable
conclusion Parra had a role in the drug conspiracy and possessed drugs with intent
to distribute them. Thus, ample evidence supports Parra’s conviction.
B. Parra’s Drug Quantity at Sentencing
Parra argues the district court committed procedural error in calculating his
Guidelines range by holding him accountable for more cocaine than found by the
jury. We review de novo the legal question of whether the district court could find
a higher quantity of drugs than the jury found. See United States v. Webb, 545 F.3d
673, 676–77 (8th Cir. 2008). This court has held “a district court may impose a
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sentence based on a drug quantity determination greater than that found by the jury
so long as the sentence does not exceed the statutory maximum of the convicted
offense and the district court’s calculation is supported by sufficient evidence.” Id.
at 677. Parra tries to distinguish Webb on the ground it involved a jury finding with
only one option for drug quantity rather than a finding among multiple options. That
distinction in the jury form does not evade Webb’s core holding that a district court’s
sentencing finding may exceed the jury’s finding on drug quantity. The district court
did not err in following our precedent.
We also see no indication the district court committed a clear error in
calculating the drug quantity on the evidence presented. The calculation is a factual
determination reviewed for clear error. Id. Police officers seized over 445 grams of
cocaine and two kilogram-sized wrappers from the stash house where Parra was
staying. Ramirez also told police officers Parra helped transport two kilograms of
cocaine from Texas to Minnesota. This evidence is sufficient under a preponderance
of the evidence standard. See United States v. Eberspracher, 936 F.2d 387, 389 (8th
Cir. 1991) (affirming attributing four kilograms of cocaine to a defendant based on
finding four kilogram wrappers at his business).
C. Ramirez’s Role in the Offense
Ramirez challenges the district court’s determination that he was not entitled
to a minor role reduction under U.S.S.G. § 3B1.2(b). This is also a factual
determination that is reviewed for clear error. See United States v. Cartagena, 856
F.3d 1193, 1196 (8th Cir. 2017). The Guidelines direct district courts to decrease the
offense level by two levels “[i]f the defendant was a minor participant in any criminal
activity.” U.S.S.G. § 3B1.2(b). This court has recently explained “this deduction is
available where the defendant’s role ‘makes him substantially less culpable than the
average participant in the criminal activity.’” United States v. Sharkey, 895 F.3d
1077, 1081 (8th Cir. 2018) (quoting U.S.S.G. § 3B1.2 cmt. n.3). It is the defendant’s
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burden to establish both that “he or she is [a] minor participant by comparison with
other participants and by comparison with the offense for which he or she is
accountable.” Id. (alteration in original) (quoting United States v. Bradley, 643 F.3d
1121, 1129 (8th Cir. 2011)). “[T]his court has consistently rejected the argument that
a distributor of controlled substances deserves a minor-role reduction simply because
of the presence of a larger-scale upstream distributor.” Id. (quoting same).
The district court’s decision to deny a minor-role reduction to Ramirez was
consistent with the evidence. The jury heard evidence that Ramirez was involved in
the conspiracy for at least three months and delivered drugs to Llamas on at least one
if not two occasions. We have repeatedly found no clear error in the denial of a
minor-role reduction on similar facts. See, e.g., United States v. Almazan, 552 F.
App’x 610, 611 (8th Cir. 2014) (unpublished) (finding no clear error where defendant
admitted knowledge of transporting hidden cocaine in the vehicle he was driving and
received $1,000 for transporting the cocaine); United States v. Pruneda, 518 F.3d
597, 606 (8th Cir. 2008) (finding no clear error where defendant was merely a
courier); United States v. O’Dell, 204 F.3d 829, 838 (8th Cir. 2000) (finding no clear
error where defendant was less culpable than co-defendants but helped transport
drugs several times). We see no distinguishing reason to find clear error here.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the district court.
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