United States v. Juan Polanco ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-1587
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Juan Polanco, * [UNPUBLISHED]
*
Appellant. *
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Submitted: December 6, 1999
Filed: December 13, 1999
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Before WOLLMAN, Chief Judge, RICHARD S. ARNOLD, and BEAM, Circuit
Judges.
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PER CURIAM.
Juan Polanco appeals the 135-month sentence imposed by the district court1 after
he pleaded guilty to conspiring to distribute methamphetamine, in violation of 21
U.S.C. § 846. We affirm.
1
The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
Polanco’s activities were discovered after federal agents seized approximately
twelve pounds of a substance containing methamphetamine from two women at an
Oklahoma airport. After the women’s two contacts were also arrested and agreed to
cooperate, agents arranged a controlled delivery and equipped one contact, Lucio
Martinez, with a body wire. Martinez drove to a gas station in Springdale, Arkansas,
where he met Polanco and a co-defendant, who were overheard criticizing the quality
of a prior shipment of methamphetamine and expressing concern that Martinez may
have been followed. At his change-of-plea hearing, Polanco admitted that he expected
to be paid to transport the twelve pounds of methamphetamine to Missouri.
According to Polanco’s presentence report (PSR), he consented on the day of
his arrest to a search of his Rogers, Arkansas residence, where officers arrested his
wife after locating two additional pounds of a substance containing methamphetamine.
During an interview with officers, Polanco’s wife stated that Polanco had been dealing
pound quantities of methamphetamine in the area for two to three years; that he had
two sources and usually received two to three pounds every two to three weeks; and
that he had recently sold three pounds of methamphetamine. At sentencing, the
government also introduced into evidence the PSR of Polanco’s co-defendant, which
stated Polanco had previously conducted a “three pound deal” with a third party.
We reject Polanco’s argument that the district court clearly erred in holding him
accountable for methamphetamine seized from his residence after his arrest. We
conclude that the unobjected-to factual allegations in Polanco’s PSR support the district
court’s finding that the methamphetamine discovered at Polanco’s residence was part
of “the same course of conduct or common scheme or plan as the offense of
conviction” and thus constituted relevant conduct. See U.S. Sentencing Guidelines
Manual § 1B1.3(a)(2) (1998); United States v. Geralds, 158 F.3d 977, 979 (8th Cir.
1998) (concluding defendant’s possession of drugs 18 months prior to offense of
conviction was part of same course of conduct for drug-quantity calculation where both
were distribution-related offenses, and both involved same type and quantity of drug
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and same geographical area), cert. denied, 119 S. Ct. 1280 (1999); United States v.
Spence, 125 F.3d 1192, 1195 (8th Cir. 1997) (concluding drugs seized at time of
defendant’s arrest were properly included as same course of conduct as offense of
conviction where two incidents occurred within few months and involved distribution
quantities of same drug), cert. denied, 118 S. Ct. 1544 (1998).
We also conclude that the district court did not clearly err in finding Polanco was
not a minor participant. Polanco does not dispute that he accompanied his co-
defendant to the controlled delivery; that he expected to transport the twelve pounds
of methamphetamine to Missouri for compensation; that he had previously conducted
a transaction involving three pounds of methamphetamine; and that police discovered
a large quantity of methamphetamine at his residence shortly after his arrest. See
United States v. Chatman, 119 F.3d 1335, 1341 (8th Cir.) (defendant sought role
reduction under § 3B1.2 after being convicted for distributing crack cocaine; court
rejected mere-courier argument where defendant “played a significant role in carrying
out drug transactions”), cert. denied, 118 S. Ct. 434 (1997); United States v. Carrazco,
91 F.3d 65, 67 (8th Cir. 1996) (role reduction would not be warranted even if defendant
were just “mule” where defendant was apprehended with substantial amount of drugs).
Finally, we reject Polanco’s argument that the district court’s consideration at
sentencing of inculpatory statements made by Polanco’s wife as reported in his PSR
violated the marital privilege. See Trammel v. United States, 445 U.S. 40, 53 n.12
(1980) (no privilege “prevents the Government from enlisting one spouse to give
information concerning the other or to aid in the other’s apprehension. It is only the
spouse’s testimony in the courtroom that is prohibited.”); United States v. Burton, 631
F.2d 280, 281-82 (4th Cir. 1980) (concluding sentencing court did not violate any
marital privilege by considering PSR containing allegedly inculpatory statements made
by defendant’s wife).
Accordingly, the judgment is affirmed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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