United States v. Juan Lugo , 702 F.3d 1086 ( 2013 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 11-2618
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Juan Daniel Lugo
    lllllllllllllllllllll Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the Southern District of Iowa – Davenport
    ____________
    Submitted: September 20, 2012
    Filed: January 8, 2013
    ____________
    Before MELLOY, SMITH, and SHEPHERD, Circuit Judges.
    ____________
    MELLOY, Circuit Judge.
    Juan Daniel Lugo pleaded guilty to conspiring to manufacture, distribute, and
    possess with intent to distribute, methamphetamine and marijuana in violation of
    
    21 U.S.C. §§ 846
     and 841(a)(1). The district court1 sentenced him to a prison term
    1
    The Honorable John A. Jarvey, United States District Judge for the Southern
    District of Iowa.
    of 240 months. Because the district court did not clearly err in determining the
    identity of the substance for sentencing purposes, we affirm.
    I.
    On February 17, 2010, a grand jury indicted Lugo and three coconspirators for
    violating 
    21 U.S.C. §§ 846
     and 841(a)(1). Lugo subsequently pleaded guilty and
    entered into a plea agreement.2 The presentence investigation report (PSR)
    recommended a total offense level of 39. This recommendation was based on a base
    offense level of 38 for the quantity of drugs, a four-level increase for Lugo's
    aggravating role as the leader and organizer of the conspiracy, and a three-level
    reduction for Lugo's acceptance of responsibility.
    At his sentencing hearing, Lugo objected to the PSR on several grounds.
    Relevant to this appeal is Lugo's contention that the district court mischaracterized
    the methamphetamine as "actual" methamphetamine (or "ice"3), as opposed to a
    mixture containing methamphetamine. The district court, acknowledging the often
    difficult task of determining drug quantity, reduced Lugo's base offense level from
    38 to 36. The court stated:
    The process of determining drug quantity is always – always difficult
    because memories often fade, there is difficulty in recalling exactly
    when the change was made from methamphetamine mixture to ice, all
    those kinds of issues.
    2
    As part of Lugo's plea agreement, the government agreed to dismiss two
    additional counts of the indictment relating to the distribution of drugs.
    3
    The U.S. Sentencing Commission Guidelines Manual ("Sentencing
    Guidelines") defines "ice" as "a mixture or substance containing d-methamphetamine
    hydrochloride of at least 80% purity." U.S.S.G. § 2D1.1(c) n.(C).
    -2-
    Here the ice alone easily gets him to a level 36. . . . [I]t would take 19 or
    20 ounces of ice just to get to a level 36. It would take probably 60
    ounces of ice alone to get to a level 38. This is the most conservative
    estimate I’ve ever made, but I am going to find a level 36 and I can
    justify that very easily based on the ice alone, not to mention the
    marijuana or the other methamphetamine without attributing the 17
    ounces to Mr. Lugo.
    The district court denied Lugo's other objections to the PSR4 and, based on the
    adjusted total offense level of 37 (including the same four-level increase and three-
    level reduction, respectively), sentenced Lugo to 240 months' imprisonment.5
    Lugo subsequently appealed his 240-month sentence, arguing that the district
    court clearly erred in finding that the drug involved in the conspiracy was "ice" and
    not a mixture containing methamphetamine. Specifically, Lugo contends that the
    government failed to meet its burden with respect to proving the purity of the
    methamphetamine because it did not conduct any testing on the seized substances.
    The government, however, claims that the Sentencing Guidelines do not require that
    purity be proved with "absolutely certainty," and that "direct evidence of the visual
    characteristics of a drug," as well as circumstantial evidence and expert testimony, are
    all that is required for proof.
    This Court submitted Lugo's case without argument on March 12, 2012, but
    subsequently vacated that submission on April 24 and ordered supplemental briefing
    on three issues: (1) "whether it is clear error for the district court to sentence on the
    basis of 'ice' methamphetamine despite the government's failure to test whether the
    4
    Lugo also objected to the PSR on the grounds that (1) the quantity of drugs
    was overstated, (2) he did not play an aggravating role in the offense, and (3) his
    criminal history category was computed incorrectly.
    5
    The advisory sentencing range based on Lugo's offense level and criminal
    history category is 235–293 months' imprisonment.
    -3-
    seized methamphetamine is in fact 'a mixture or substance containing
    d-methamphetamine hydrochloride of at least 80% purity'"; (2) "whether the analysis
    may be different depending on whether there was an actual seizure of
    methamphetamine"; and (3) whether United States v. Stewart, 
    122 F.3d 625
    , 628 (8th
    Cir. 1997), and United States v. Whitehead, 
    487 F.3d 1068
    , 1072 (8th Cir. 2007),
    control this issue. We then heard oral arguments from the parties regarding Lugo's
    appeal and the issues listed above. We now affirm.
    II.
    A.
    The government, for sentencing purposes, bears the burden to prove drug type
    by a preponderance of the evidence. United States v. Thompson, 
    335 F.3d 782
    , 784
    (8th Cir. 2003). We review a sentencing court's determination of drug type for clear
    error, and "will reverse only if firmly convinced [that] a mistake has been made." 
    Id.
    (citing United States v. Maxwell, 
    25 F.3d 1389
    , 1397 (8th Cir. 1994)). Where only
    "a small portion of the methamphetamine recovered during [an] investigation" is
    tested for purity, "the testing evidence combined with the testimony of witnesses who
    actively participated in the drug conspiracy [can] amply support[]" a sentencing
    court's conclusion as to drug type for a quantity of drugs greater than the amount
    seized. United States v. Fairchild, 
    189 F.3d 769
    , 778 (8th Cir. 1999). "When no
    quantity has been recovered, the government may prove the purity of quantities
    attributed to the defendant by circumstantial evidence, for example, a conspirator's
    reliable testimony . . . or an expert's testimony as to the normal purity of
    methamphetamine produced in a lab." United States v. Houston, 
    338 F.3d 876
    , 879
    (8th Cir. 2003) (citations omitted). In relying on witness testimony as evidence of
    purity, "[t]he finder of fact may accept the parts of a witness's testimony that it finds
    credible while rejecting any portion it finds implausible or unreliable," United States
    v. Boyce, 
    564 F.3d 911
    , 916 (8th Cir. 2009), and such "[f]indings about the
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    credibility of witnesses are 'virtually unreviewable on appeal,'" 
    id.
     (quoting United
    States v. Gomez-Perez, 
    452 F.3d 739
    , 743 (8th Cir. 2006)).
    B.
    Several of our prior decisions are instructive on whether it was clear error for
    the district court to find, absent testing for purity, that the methamphetamine was
    properly categorized as "ice." In Stewart, the defendant argued that there was not
    sufficient evidence to prove that the cocaine that he sold was "crack" cocaine.6 
    122 F.3d at 628
    . Specifically, the defendant argued that there must be evidence that the
    substance contained cocaine hydrochloride and sodium bicarbonate. 
    Id.
     We rejected
    that argument because "the Sentencing Guidelines only state that crack cocaine is
    'usually prepared by processing cocaine hydrochloride and sodium bicarbonate.'" 
    Id.
    (emphasis added) (quoting U.S.S.G. § 2D1.1(c) n.D). The Sentencing Guidelines
    thus "do[] not require such evidence before the district court can conclude that a
    substance is crack cocaine." Id. (emphasis added).
    A decade later, in Whitehead, we again considered whether it was clear error
    for the district court to determine that a substance is "crack" cocaine absent laboratory
    testing. 
    487 F.3d at
    1072 (citing Stewart, 
    122 F.3d at 628
    ). In that case, the
    government presented testimony from an experienced narcotics agent regarding the
    appearance of the seized substance and the conditions under which he found it. 
    Id.
    Specifically, the agent testified that he found the substance damp and in a microwave,
    but that it later dried out and took on a rock-like form. 
    Id.
     In finding no clear error
    in the district court's identification of the drug as "crack," we reiterated that "the
    6
    Under the Sentencing Guidelines, "crack" cocaine carries with it a higher a
    base offense level per unit mass than cocaine in a powder form. See U.S.S.G.
    § 2D1.1(c); see also Theus v. United States, 
    611 F.3d 441
    , 447 (8th Cir. 2010) ("[A]
    crack cocaine conviction [will] yield a much higher sentence than a powder cocaine
    conviction.").
    -5-
    identity of a controlled substance can . . . be proved by circumstantial evidence and
    opinion testimony." 
    Id.
     (alteration in original) (quoting United States v. Covington,
    
    133 F.3d 639
    , 644 (8th Cir. 1998) (internal quotation marks omitted)).
    The general principles underlying our decisions in Stewart and Whitehead
    accord with the decisions of our sister circuits. See, e.g., United States v. Linton, 
    235 F.3d 328
    , 329–30 (7th Cir. 2000) (district court's determination of "crack" cocaine
    supported by "direct evidence of the visual characteristics" of the substance and
    testimony of veteran narcotics agent and forensic chemist); United States v. Jones,
    
    159 F.3d 969
    , 981–83 (6th Cir. 1998) (testimony of forensic scientist and experienced
    narcotics officer, coupled with knowledge of drug preparation, sufficient to satisfy
    preponderance standard that substance was "crack" cocaine); see also United States
    v. Verdin-Garcia, 
    516 F.3d 884
    , 896 (10th Cir. 2008) ("Narcotics need not be seized
    or tested to be held against a defendant at sentencing. . . . Laboratory test results are
    perhaps more persuasive evidence of amounts of purities than eyewitness testimony
    . . . but [such testimony] is not unreliable as a matter of law.").
    C.
    1.
    Subsequent to the filing of supplemental briefs, we decided United States v.
    Walker, 
    688 F.3d 416
     (8th Cir. 2012). In Walker, the defendants pleaded guilty to
    conspiring to distribute methamphetamine, and their coconspirators testified at their
    sentencing hearing. 
    Id.
     at 419–20. Specifically, the defendants' coconspirators
    "consistently identified the methamphetamine . . . as 'ice,'" and "distinguished the 'ice'
    . . . from the anhydrous methamphetamine . . . based on its appearance, form, price,
    and quality." 
    Id. at 424
    . The defendants argued that the district court erred by
    "crediting the testimony of [their] coconspirators because they did not have chemistry
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    backgrounds or understand the definition of 'ice' under the Guidelines." 
    Id. at 425
    .
    We rejected this argument:
    That [the defendants] and their coconspirators did not have a scientific
    or technical understanding of the term "ice" is relevant to the district
    court's assessment of the reliability of their testimony as to drug identity
    or purity, but does not necessarily preclude the district court from
    finding the methamphetamine . . . was "ice."
    
    Id.
    In finding no clear error in the district court's identification of the substance as
    "ice," we noted "the flexible Guidelines approach of allowing the sentencing court
    broad discretion to consider a wide range of relevant evidence from a variety of
    sources as long as the evidence 'has sufficient indicia of reliability to support
    probable accuracy.'" 
    Id. at 423
     (quoting United States v. Sicaros-Quintero, 
    557 F.3d 579
    , 582 (8th Cir. 2009)). Such evidence includes the source of the controlled
    substance, the price generally obtained for the controlled substance, the substance's
    appearance and form, and users and distributors' reports of the identity and quality of
    the substance. Id. at 424.
    2.
    Lugo's case is indistinguishable from Walker, and thus Walker controls our
    analysis. Here, Lugo's coconspirator testified regarding the physical characteristics
    and appearance of the methamphetamine involved in the conspiracy. Specifically, the
    sentencing court heard testimony from Tamera Scheper that the methamphetamine
    from Lugo was "powdery and rocky and . . . clear" and "white," and that she sold
    sixty-one ounces (61 oz.) of the substance between July 2008 and January 2009.
    Scheper also testified that Lugo had referred to the substance as "ice," that she sold
    -7-
    it to her customers as "ice," and that it was "much cleaner" than anhydrous
    methamphetamine.
    We find no clear error in the district court's consideration of, and reliance on,
    Scheper's testimony to determine that Lugo was dealing in "ice" and not a mixture of
    substances containing methamphetamine. Scheper's testimony regarding the amount
    and quality of methamphetamine that she received from Lugo is plainly within the
    purview of evidence that the district court may consider when making a finding as to
    the identification of a substance. See Walker, 688 F.3d at 423 (citing with approval
    United States v. Cockerill, No. 99-4634, 2000 WL852608, at *2–3 (4th Cir. June 28,
    2000) (coconspirator's testimony that the methamphetamine "was of very good
    quality" is sufficient evidence for a sentencing court to conclude that the substance
    was not a methamphetamine mixture)); see also Whitehead, 
    487 F.3d at 1072
     ("[T]he
    identity of a controlled substance . . . can be proved by circumstantial evidence and
    opinion testimony." (second alteration in original) (quoting United States v.
    Covington, 
    133 F.3d 639
    , 644 (8th Cir. 1998) (internal quotation marks omitted))).
    D.
    We now address, to the extent that they remain unanswered, the questions for
    which the parties submitted supplemental briefs. First, as first set forth in Walker and
    made clear in this opinion, it is not clear error for the district court to sentence on the
    basis of "ice" methamphetamine despite the government's failure to test the purity of
    the seized substance. See Walker, 688 F.3d at 425. Second, this analysis remains
    unchanged even where, as here, there was an actual seizure of methamphetamine.
    This Court in Walker, while recognizing the value of chemical testing, see id. n.4,
    stated that "[t]he Guidelines do not require the government to establish the identity,
    quantity, or purity of methamphetamine by laboratory analysis," id. at 423 (emphasis
    added). See also id. ("[T]he Guidelines do not specify what evidence is required to
    establish methamphetamine as 'ice' and . . . we have consistently rejected arguments
    -8-
    demanding direct evidence of drug identity, quantity, or purity." (citing Whitehead,
    
    487 F.3d at
    1071–72)). Finally, Stewart and Whitehead, although dealing with
    different types of drugs, present the same issue as Walker and this case. Those cases
    thus control to the extent that they fill any gaps left by our decision in Walker.
    III.
    For the reasons set forth above, we find no clear error in the district court's
    identification of the substance as "ice" methamphetamine. Accordingly, Lugo's
    sentence is affirmed.
    ______________________________
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