United States v. Milton Castanon , 88 F. App'x 965 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2836
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of Nebraska.
*
Milton Castanon, * [UNPUBLISHED]
*
Appellant. *
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Submitted: February 10, 2004
Filed: February 17, 2004
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Before MELLOY, FAGG, and COLLOTON, Circuit Judges.
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PER CURIAM.
After an undercover investigation, police arrested Milton Castanon on federal
drug charges and he made incriminating statements. The district court* denied
Castanon’s motion to suppress and the case went to trial. At its conclusion, Castanon
was convicted of conspiracy to distribute and distribution of methamphetamine. The
district court found “the amounts of methamphetamine and cocaine for which
[Castanon] is responsible are the marihuana equivalency of approximately 11,109.94
*
The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska.
kilograms of marihuana,” placing Castanon in the drug quantity range corresponding
to a base offense level of 36. See U.S.S.G. § 2D1.1(c)(2). Castanon appeals his
conviction and sentence. We affirm.
Castanon first contends the evidence was insufficient to convict him of
conspiracy to distribute five hundred grams or more of methamphetamine. We must
uphold Castanon’s conspiracy conviction if the evidence showed Castanon and
another person agreed to distribute methamphetamine, Castanon knew of the
agreement, and Castanon intentionally participated in the agreement. See United
States v. Hester, 140 F.3d 753, 760 (8th Cir. 1998); United States v. Cuervo, 2004 WL
99021, at *10 (8th Cir. Jan. 22, 2004). Viewing the evidence in the light most
favorable to the verdict, we conclude a reasonable jury could conclude beyond a
reasonable doubt that Castanon conspired with Milton Monge to distribute five
hundred grams or more of methamphetamine. See United States v. Ramirez, 350 F.3d
780, 784 (8th Cir. 2003). Monge testified that for two or three months he bought
methamphetamine from Castanon each week in quantities of a half pound, a pound,
and a pound and half for resale to others. He testified he later bought pound
quantities of methamphetamine from Castanon at least five more times. The evidence
thus showed Castanon distributed at least ten and a half pounds (4762 grams)
methamphetamine to Monge in resale quantities. This evidence alone is sufficient to
establish a conspiracy to distribute. Id. (sale of one-pound quantities of
methamphetamine on at least three occasions created inference of conspiracy to
distribute). The evidence also showed Monge and Castanon had an understanding
about the drugs, including a usual price for the quantities. See id. Even if the
evidence shows multiple conspiracies as Castanon contends, Castanon does not claim
any variance prejudiced him. See Cuervo, 2004 WL 99021, at *13. Without showing
the alleged variance infringed on his substantial rights, Castanon is not entitled to
relief. Id.-2-
Second, Castanon argues the district court erroneously admitted his postarrest
incriminating statements because he was going through methamphetamine withdrawal
and could not knowingly and intelligently waive his Miranda rights. Generally, we
review the district court’s factual findings for clear error and the denial of the motion
to suppress de novo. United States v. Green, 275 F.3d 694, 698 (8th Cir. 2001).
Castanon failed to object to the magistrate judge's report and recommendation,
however, and we thus review the district court's factual findings for plain error.
United States v. Looking, 156 F.3d 803, 809 (8th Cir. 1998). Neither intoxication nor
withdrawal necessarily invalidates a confession. United States v. Korn, 138 F.3d
1239, 1240 (8th Cir. 1998); United States v. Medina, 552 F.2d 181, 187 (7th Cir.
1977). The district court did not commit plain error in finding Castanon was not
under the influence of methamphetamine when he made the statements. The
investigative officers who took the statements testified Castanon exhibited none of
the symptoms of being under the influence of methamphetamine. Having carefully
reviewed the totality of the circumstances, we conclude Castanon’s will was not
overborne and his waiver of rights was knowing and intelligent. See Korn, 138 F.3d
at 1240. Thus, the district court properly denied Castanon’s motion to suppress.
Last, Castanon argues the district court committed error in calculating the
amount of drugs involved because the district court should not have believed
Monge’s testimony about quantities. We review drug quantity calculations for clear
error, Cuervo, 2004 WL 99021, at *24, and find none in this case. The district court
specifically found Monge’s testimony was not exaggerated or false. The district court
was entitled to make this credibility determination. Id.We thus affirm Castanon’s conviction and sentence.
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