United States v. Juan Rodriguez ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1642
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Juan M. Rodriguez, * [UNPUBLISHED]
*
Appellant. *
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Submitted: June 12, 2006
Filed: July 20, 2006
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Before BYE, LAY, and RILEY, Circuit Judges.
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PER CURIAM.
A jury convicted Juan M. Rodriguez of one count of conspiracy to distribute
and possess with intent to distribute 500 grams or more of methamphetamine and one
count of possession with intent to distribute 50 grams or more but less than 500 grams
of methamphetamine. He appeals claiming the evidence was insufficient to support
the verdicts. He further claims the district court abused its discretion in denying his
request for a Franks1 hearing. Finally, he challenges his 300-month sentence. We
affirm the judgment of conviction but reverse the sentence and remand for
resentencing.
1
Franks v. Delaware, 438 U.S. 154 (1978).
The evidence against Rodriguez, which included the testimony of several law
enforcement officers and three cooperating witnesses, established he received
methamphetamine from sources in California and sold it in Omaha and Lincoln,
Nebraska. A search of the house where he lived uncovered 300 grams of
methamphetamine, two 1500-tablet containers of methylsulfonylmethane (MSM) (a
common dilutant for methamphetamine) as well as two plastic bags containing
roughly ten pounds of "cut" powder, a blender, a scale, shrinkwrap, and $4,680 in
cash. Law enforcement officers obtained a search warrant for the house after 1) a
confidential informant told them Rodriguez's son, Juanito, would be leaving the house
to make a delivery of part of one pound of methamphetamine, and 2) officers stopped
the vehicle in which Juanito was a passenger and found five ounces of
methamphetamine.
Rodriguez, primarily by challenging the credibility of the cooperating
witnesses, contends the evidence was insufficient to show he was a part of a
conspiracy or, in the alternative, the evidence showed he was part of a conspiracy that
occurred at times other than the dates alleged in the superseding indictment. We reject
this claim. "[W]itness credibility is virtually unreviewable on appeal," United States
v. Ziesman, 409 F.3d 941, 948 (8th Cir. 2005), and the mere fact witnesses testify in
exchange for the possibility of reduced sentences does not categorically make their
testimony infirm, e.g., United States v. Maggard, 156 F.3d 843, 847 (8th Cir. 1998).
In addition, when a defendant contends the evidence proves a different conspiracy
than the one charged in the indictment, "[w]e will reverse only if we find the evidence
adduced at trial does not support a finding of a single conspiracy, and we determine
[the defendant] was prejudiced by the variance," United States v. Benford, 360 F.3d
913, 914 (8th Cir. 2004). No such variance existed in the instant case. See United
States v. Roach, 164 F.3d 403, 412 (8th Cir. 1998) ("A single conspiracy may exist
even if the participants and their activities change over time, and even if many
participants are unaware of, or uninvolved in, some of the transactions.").
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We also reject Rodriguez's claim the district court abused its discretion in
denying his request for a Franks hearing. To obtain a Franks hearing, a defendant
must show "an affiant deliberately lied or recklessly disregarded the truth," United
States v. Moore, 129 F.3d 989, 992 (8th Cir. 1997), and "the alleged false statement
or omission was necessary to the finding of probable cause." United States v. Gabrio,
295 F.3d 880, 883 (8th Cir. 2002). Here, the district court determined, and we agree,
the search warrant affidavit contained sufficient information to establish probable
cause even after redacting the information to which he objected.
Finally, Rodriguez challenges the district court's calculation of a guideline
range of 262-327 months using a four-level adjustment for his having illegally
reentered the United States following his deportation. This adjustment apparently
relates to a count of the superseding indictment which was severed for trial and then
later dismissed by the government. The government concedes the district court erred
by imposing this adjustment. Although this issue is subject to plain error review
because Rodriguez did not raise it in the district court, we conclude the district court
plainly erred because his guideline range is 168-210 months without the enhancement,
well below the 300-month sentence imposed by the district court. See United States
v. Comstock, 154 F.3d 845, 850 (8th Cir. 1998) (concluding error substantially
affected defendant's rights because he "would end up serving 17 more months in
prison than he might have served had he been sentenced absent the error"). We
choose to "exercise our discretion to recognize the plain error in this case and remand
to the district court for resentencing." United States v. Smith, 444 F.3d 996, 998 (8th
Cir. 2006).
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We affirm the judgment of conviction, but reverse the sentence and remand for
resentencing.2
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2
The government contends the district court committed two additional
sentencing errors when it 1) refused to apply an enhancement based on Rodriguez's
role in the offense and 2) declined to find Rodriguez responsible for a quantity of
methamphetamine above that found by the jury. Those issues are not preserved for
our review, however, as the government failed to file a cross appeal. See United
States v. Schafer, 429 F.3d 789, 792 (8th Cir. 2005). We therefore do not offer any
view on the merits of the government's two additional sentencing issues.
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