United States v. David Gonzales , 615 F. App'x 405 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 25 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-30242
Plaintiff - Appellee, D.C. No. 3:13-cr-00089-SLG-2
v.
MEMORANDUM*
DAVID ALAN GONZALES,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Submitted August 13, 2015
Anchorage, Alaska
Before: SCHROEDER, RAWLINSON, and MURGUIA, Circuit Judges.
David Alan Gonzales appeals his convictions for drug trafficking
conspiracy, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A), and possession of a
controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The district court admitted into evidence a Reverse Look-Up Report to
show that Gonzales’s cell phone had repeatedly tracked the shipment of a package
containing over 50 grams of methamphetamine. The report was automatically
generated when a postal inspector entered the package’s tracking number into a
U.S. Postal Service database. Gonzales challenges the admission of the report on
hearsay and Confrontation Clause grounds. Because the Reverse Look-Up Report
was automatically computer-generated without human input or review, it is not a
statement of a “person,” Fed. R. Evid. 801(a), and therefore is not subject to the
rule against hearsay. See United States v. Lizarraga-Tirado, 789 F.3d 1107, 1110
(9th Cir. 2015) (“[M]achine statements aren’t hearsay.”). Because the report is not
hearsay, it is also not subject to the Confrontation Clause. See id.; United States v.
Cazares, 788 F.3d 956, 979 (9th Cir. 2015).
2. “To establish a drug conspiracy, the government must prove (1) an
agreement to accomplish an illegal objective; and (2) the intent to commit the
underlying offense.” United States v. Reed, 575 F.3d 900, 923 (9th Cir. 2009)
(quoting United States v. Iriarte-Ortega, 113 F.3d 1022, 1024 (9th Cir. 1997)).
Viewing the evidence in the light most favorable to the prosecution, a rational juror
could infer that Gonzales participated in a drug trafficking conspiracy. See United
States v. Mincoff, 574 F.3d 1186, 1192 (9th Cir. 2009).
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A package containing a large quantity of methamphetamine was addressed
to “Dave” at an address in Anchorage, Alaska. A cell phone registered to Gonzales
repeatedly tracked the shipment of the package and contained a photograph of the
package’s tracking number. Gonzales arrived at the delivery address shortly after
the package was received, and the package was opened shortly after Gonzales
arrived. Other packages similar to the subject package recently had been delivered
to, e.g., “My Brother Dave,” at the same delivery address. This evidence is
sufficient for a rational juror to infer the existence of an agreement to distribute
methamphetamine. See, e.g., United States v. Duenas, 691 F.3d 1070, 1085–86
(9th Cir. 2012) (conspiracy conviction supported by evidence of large quantity of
methamphetamine and statements referencing additional participants in distribution
scheme); Reed, 575 F.3d at 924 (conspiracy conviction supported by testimony
regarding defendant’s involvement in multiple drug transactions).
With respect to Gonzales’ intent to distribute, the subject package contained
52 grams of 100% pure methamphetamine, the equivalent of $5,000 worth, or
between 250–500 individual doses. In addition, the following items, among others,
were found at the subject delivery address: two firearms, ammunition, a ballistic
vest, and a digital scale. This evidence is sufficient for a rational juror to infer
Gonzales’ intent to distribute methamphetamine. See United States v. Savinovich,
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845 F.2d 834, 838 (9th Cir. 1988) (“Intent to distribute may be inferred from the
purity, price, and quantity of the drug possessed.”); United States v. Johnson, 357
F.3d 980, 985 (9th Cir. 2004) (intent to distribute “evidenced by the distribution
paraphernalia”).
3. To support a conviction for possession with intent to distribute, the
government must prove (1) knowing possession of a controlled substance with (2)
intent to distribute it to another person. 21 U.S.C. § 841(a)(1). A postal inspector
testified that the delivered package contained a “detectable amount” of
methamphetamine. See 21 U.S.C. § 841(b). And, as noted above, the subject
package contained a large quantity of 100% pure methamphetamine, see
Savinovich, 845 F.2d at 838, and extensive distribution paraphernalia was found at
the delivery address, see Johnson, 357 F.3d at 985. Viewed in the light most
favorable to the prosecution, a rational juror could infer from this evidence both
knowing possession and intent to distribute. Mincoff, 574 F.3d at 1192.
AFFIRMED.
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