United States v. Erik Zacarias-Cornelio , 349 F. App'x 117 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-1576
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United States of America, *
*
Plaintiff - Appellee, *
*
v. *
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Erik Zacarias-Cornelio, *
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Defendant - Appellant. *
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Appeals from the United States
No. 08-1644 District Court for the
___________ District of South Dakota.
United States of America, * [UNPUBLISHED]
*
Plaintiff - Appellee, *
*
v. *
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Efrain Cornelio-Gonzalez, also known *
as Weto, also known as Weto 2, *
*
Defendant - Appellant. *
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Submitted: May 12, 2009
Filed: October 16, 2009
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Before LOKEN, Chief Judge, BYE, Circuit Judge, and MILLER,* District Judge.
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PER CURIAM.
A jury convicted Efrain Cornelio-Gonzalez and Erik Zacarias-Cornelio of
conspiracy to distribute 500 grams or more of a methamphetamine mixture in
violation of 21 U.S.C. §§ 841(a)(1) and 846. Based on a prior drug conviction, the
district court1 sentenced Zacarias-Cornelio to the statutory mandatory minimum term,
240 months in prison. See 21 U.S.C. § 841(b)(1)(A)(viii). The court sentenced
Cornelio-Gonzalez to 144 months in prison, more than the statutory minimum of 120
months but less than his advisory guidelines sentencing range of 188 to 235 months.
Both defendants appeal, arguing there was insufficient evidence to support the guilty
verdicts. In addition, Zacarias-Cornelio argues the district court erred in not
submitting the issue of his prior drug conviction to the jury. We affirm.
At trial, admitted methamphetamine dealer and user Christina Kline testified
that she began purchasing methamphetamine from Cornelio-Gonzalez in August 2005,
initially buying one ounce per week, increasing to four to five ounces per day in
November. In December, Cornelio-Gonzalez asked Kline to “go through” his
nephew, Zacarias-Cornelio. Kline left Sioux Falls after a major customer’s arrest in
January 2006 but returned in April to buy a “few ounces” from Zacarias-Cornelio.
Kline’s testimony was supported by testimony of Brian Dupree, her boyfriend, who
purchased methamphetamine from Cornelio-Gonzalez when Kline was out of town;
Maria Guzman, who saw Kline give money to Cornelio-Gonzalez and saw Cornelio-
Gonzalez sell methamphetamine to a man; and Holly Thomas, who transported what
*
The HONORABLE BRIAN STACY MILLER, United States District Judge
for the Eastern District of Arkansas, sitting by designation.
1
The HONORABLE LAWRENCE L. PIERSOL, United States District Judge
for the District of South Dakota.
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she believed to be drug money from Kline to Cornelio-Gonzalez. The government
also introduced evidence that a warrant search of the residence shared by Cornelio-
Gonzalez and Zacarias-Cornelio yielded two small-weight scales, one with a trace of
methamphetamine, a bag for a third scale, and a snort tube with a trace amount of
methamphetamine. During the search, Zacarias-Cornelio retrieved approximately
$1,500 from under a bookshelf in his bedroom.
1. On appeal, Cornelio-Gonzalez concedes the government proved the existence
of a conspiracy and his participation, but he argues there was insufficient evidence he
conspired to distribute 500 grams or more of methamphetamine. Contrasting the
quantity “actually produced at trial” -- 25.5 grams -- with the jury’s finding by special
interrogatory that the offense involved 8,156 grams of methamphetamine, Cornelio-
Gonzalez argues that no reasonable jury could base the vast majority of its drug
quantity finding on the uncorroborated testimony of Kline, a cooperating conspirator
who was mentally impaired by her prolonged use of methamphetamine.
This drug quantity argument is unpersuasive. The jury’s special finding of
8,156 grams was not placed in issue by a challenge to the sufficiency of the evidence.
Consistent with the penalty provision in 21 U.S.C. § 841(b)(1)(A)(viii), the indictment
charged defendants with conspiring to distribute 500 grams or more of
methamphetamine. This was the quantity element of the crime. Thus, we review only
whether the evidence was sufficient to support the jury’s finding of that quantity.
Here, if the jury credited only a fraction of Christina Kline’s testimony as to the
quantity of methamphetamine she purchased from the defendants, the evidence was
sufficient to support a finding of 500 grams or more. Of course, the jury’s special
finding of 8,156 grams indicates it believed most or all of Kline’s testimony as to the
amounts of methamphetamine she purchased. Cornelio-Gonzalez argues, as he did
at trial, that Kline’s testimony was not credible. But as we have repeatedly held,
questions of witness credibility are for the jury, not an appellate court. See, e.g.,
United States v. Vaughn, 410 F.3d 1002, 1004 (8th Cir. 2005) (“[T]he uncorroborated
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testimony of an accomplice is sufficient to sustain a conviction if the testimony is not
otherwise incredible or unsubstantial on its face.”) (quotation omitted), cert. denied,
546 U.S. 1124 (2006). Thus, Cornelio-Gonzalez’s conviction must be affirmed.
2. Zacarias-Cornelio argues the government introduced insufficient evidence
to support his conviction because there was limited physical evidence linking him to
the conspiracy and no reasonable juror could credit the uncorroborated testimony of
the government’s cooperating witnesses, Christina Kline and her friends. Zacarias-
Cornelio acknowledges the many cases upholding convictions on the basis of the
testimony of cooperating co-conspirators, such as United States v. Bower, 484 F.3d
1021, 1025-26 (8th Cir. 2007). The evidence in this case is not distinguishable. The
testimony of Kline, Dupree, and Kline’s major customer established a conspiracy to
distribute methamphetamine and Zacarias-Cornelio’s willing participation in that
conspiracy. In addition, the scales and money uncovered in the warrant search of his
residence gave rise to a reasonable inference of participation in a conspiracy to
distribute methamphetamine. See United States v. Sanchez-Garcia, 461 F.3d 939, 946
(8th Cir. 2006). Although Zacarias-Cornelio may have joined the conspiracy
somewhat later than his uncle, Cornelio-Gonzalez, the evidence was more than
sufficient to support a finding that he participated in the distribution of 500 grams or
more of methamphetamine.
3. Finally, Zacarias-Cornelio argues that the district court violated his Sixth
Amendment right to a jury trial by not submitting the issue of his prior drug
conviction to the jury. This argument is foreclosed by prior Eighth Circuit decisions.
See United States v. Thomas, 398 F.3d 1058, 1063-64 (8th Cir. 2005).
The judgments of the district court are affirmed.
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