United States v. Rodolfo Suarez, Jr. , 682 F.3d 1214 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 10-10393
Plaintiff-Appellee,
v.  DC No.
CR 08-124-4 OWW
RODOLFO SUAREZ, JR.,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, Senior District Judge, Presiding
Argued and Submitted
February 16, 2012—San Francisco, California
Filed June 22, 2012
Before: A. Wallace Tashima and Barry G. Silverman,
Circuit Judges, and Lynn S. Adelman, District Judge.*
Opinion by Judge Tashima
*The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
7415
UNITED STATES v. SUAREZ 7417
COUNSEL
Karen A. Escobar, Assistant United States Attorney, Fresno,
California, for the plaintiff-appellee.
7418 UNITED STATES v. SUAREZ
David Thomas Reagan, Oakland, California, for the
defendant-appellant.
OPINION
TASHIMA, Circuit Judge:
Defendant-Appellant Rodolfo Suarez appeals his convic-
tion for conspiracy to distribute and to possess with intent to
distribute methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 846. Suarez contends that the
guilty verdict on that charge is fatally inconsistent with the
jury’s decision to acquit him on a charge of possession with
intent to distribute methamphetamine in violation of 18
U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).
Suarez also appeals his sentence of 240 months’ imprison-
ment, which the district court imposed based on the twenty-
year mandatory minimum required by 21 U.S.C.
§ 841(b)(1)(A). He contends that his 2003 guilty plea to fel-
ony drug possession in California state court does not qualify
as a “prior conviction” that “has become final” within the
meaning of § 841(b)(1)(A). We have jurisdiction pursuant to
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm
Suarez’s conviction, but vacate his sentence, and remand for
resentencing.
I. Background
Cal. Penal Code § 1000.1(b) provides for deferred entry of
judgment for a first-time drug offender who meets certain pre-
requisites, pleads guilty, and enters a drug rehabilitation pro-
gram. If the defendant successfully completes rehabilitation,
the criminal charge against him is dismissed; if the court finds
that the defendant is not performing satisfactorily, the court
renders a finding of guilty to the charge pled, enters judgment,
and schedules a sentencing hearing. Cal. Penal Code
UNITED STATES v. SUAREZ 7419
§ 1000.3. The statute provides that the defendant’s plea of
guilty “shall not constitute a conviction for any purpose
unless a judgment of guilty is entered.” Cal. Penal Code
§ 1000.1(d). “Upon successful completion of a deferred entry
of judgment program, the arrest upon which the judgment was
deferred shall be deemed to have never occurred.” Cal. Penal
Code § 1000.4(a).
In 2003, a felony complaint was filed against Suarez in
California Superior Court, alleging that he committed two
violations of the California Health and Safety Code: (1) fel-
ony possession of methamphetamine; and (2) the misdemea-
nor of being under the influence of methamphetamine. Suarez
entered a plea of guilty and opted to participate in the
§ 1000.3 deferred entry of judgment program, which he suc-
cessfully completed on May 21, 2004. The case against him
was dismissed on March 2, 2005.
In 2009, a federal indictment was returned against Suarez
and six co-defendants. Count One charged Suarez and his co-
defendants with conspiracy to distribute and to possess with
intent to distribute methamphetamine and cocaine. The indict-
ment alleged that the conspiracy began no later than Septem-
ber 6, 2006 and continued until approximately April 17, 2008.
Count Six charged Suarez and three co-defendants, including
Eustorgio Flores, with possession with intent to distribute
methamphetamine. The remaining counts in the indictment
charged Suarez’s co-defendants with various other drug-
related offenses. Four of Suarez’s co-defendants pled guilty
before trial.
On March 6, 2010, the government filed an information, as
required by 21 U.S.C. § 851, providing notice of its intention
to seek an enhanced mandatory minimum sentence of twenty
years’ imprisonment for Suarez, pursuant to § 841(b)(1)(A).
Section 841(b)(1)(A) provides, in part, that “[i]f any person
commits [a violation of § 841(b)(1)(A)] after a prior convic-
tion for a felony drug offense has become final, such person
7420 UNITED STATES v. SUAREZ
shall be sentenced to a term of imprisonment which may not
be less than 20 years and not more than life imprisonment.”
The government sought the enhanced sentence based on
Suarez’s dismissed California felony possession charge from
2003.
In response, Suarez filed a motion to dismiss the informa-
tion. He argued that the California felony possession charge
did not qualify as a “prior conviction” that “has become final”
under § 841(b)(1)(A), because it had been dismissed and
because California law stated that his guilty plea pursuant to
§ 1000.3 was not to be treated as a conviction for any pur-
pose. The government opposed the motion, but the district
court declined to rule on the issue prior to trial.
Suarez, Flores, and their co-defendant Pioquinto Larios
Santacruz proceeded to a jury trial. The government presented
the testimony of Drug Enforcement Administration (“DEA”)
Special Agent Todd Keuhnlein and a confidential source
(“CS”), as well as 27 other witnesses. Agent Keuhnlein testi-
fied that the DEA began an investigation into Flores and San-
tacruz in 2007, based on information provided by the CS.
Agent Keuhnlein testified that in April 2008, the CS arranged
to buy cocaine and methamphetamine from Flores.
The DEA began wiretapping Flores’ telephone in January
2008. The government presented three recorded conversations
between the CS and Suarez, all taped within a few days of
April 17, 2008, in which Suarez told the CS that the “card-
board boxes” would be “showing up soon,” discussed the
price of the “white box,” and gave the CS directions to the
nursery where Suarez and Flores worked. Agent Keuhnlein
testified that, based on his experience, Suarez had become a
“pretty big player” in the drug transaction at that point. On
appeal, Suarez challenges that testimony, arguing that in some
of these conversations he was simply acting as a Spanish-to-
English translator for Flores.
UNITED STATES v. SUAREZ 7421
In a fourth recorded phone call, on April 17, 2008, Suarez
told the CS that the five “windows” that the CS had ordered
had arrived, but that the “styrofoam” was not ready. In a sub-
sequent call made on the same day, Suarez explained to the
CS that the pick-up location had changed, that the CS could
follow Suarez and Flores to the new location, and that their
supplier would “give [the CS] the windows and load them up,
you know.” Keuhnlein testified at trial that “cardboard boxes”
referred to drugs, “styrofoam” and “white box” were code
words for cocaine, and “five windows” was code for five
pounds of crystal methamphetamine.
Keuhnlein testified that he and the CS met Flores and
Suarez at a Texaco station on April 17, 2008, and that the CS
and Keuhnlein followed Suarez’s car in their truck for about
ten to fifteen minutes, until they reached a house in Farmers-
ville. Agent Keuhnlein testified that Suarez drove erratically,
changing speeds frequently, a technique Keuhnlein has seen
used to detect law enforcement agents that may be following
a car. Suarez dropped Flores off in front of the house and then
left the area; it was Keuhnlein’s understanding that Suarez
was keeping watch from a remote location. Law enforcement
officers subsequently arrested Flores and Suarez and seized
over 1,500 grams of crystal methamphetamine from the Far-
mersville house.
Keuhnlein further testified that he interviewed Suarez on
April 18, 2008, and that Suarez admitted that he had partici-
pated in two drug transactions: one in midsummer 2006, in
which the CS had purchased four or five bags of crystal
methamphetamine and cocaine, and the other on April 17,
2008. Suarez also told Keuhnlein that he knew that the April
17 transaction was for five kilograms of cocaine and five
pounds of methamphetamine and that he expected payment
for his involvement in the sale.
Suarez did not present any evidence at trial. The jury found
Suarez guilty of the conspiracy charge in Count One with
7422 UNITED STATES v. SUAREZ
respect to the required amount of methamphetamine, but not
with respect to the required amount of cocaine. The jury also
found Suarez not guilty of the charge in Count Six, possession
of methamphetamine with intent to distribute. In contrast, the
jury found Flores guilty of both Counts One and Six.
Suarez filed a motion for a judgment of acquittal, contend-
ing that the jury had handed down impermissibly inconsistent
verdicts and reasserting his argument that a twenty-year man-
datory minimum sentence would not be appropriate given his
participation in the California deferred judgment program.
Suarez’s Pre-Sentence Investigation Report recommended a
sentence of 292 months. In response, Suarez filed a sentenc-
ing memorandum in which he again objected to the applica-
tion of the twenty-year mandatory minimum under
§ 841(b)(1)(A). The district court orally denied Suarez’s
motion for a judgment of acquittal and sentenced Suarez to
240 months in custody after concluding that Suarez’s prior
felony plea was a proper basis for a sentencing enhancement
under § 841(b)(1)(A). Suarez timely appealed his conviction
and sentence.
II. Standard of Review
Where a defendant moved for acquittal before the district
court, this court reviews de novo whether sufficient evidence
exists to support a guilty verdict. United States v. Stewart, 420
F.3d 1007, 1014 (9th Cir. 2005). The same de novo standard
of review applies to the legal determination of whether a
defendant may upset a guilty verdict because it is inconsistent
with an acquittal. United States v. Hart, 963 F.2d 1278, 1280
(9th Cir. 1992). The construction and interpretation of 21
U.S.C. § 841(b)(1)(A) is a question of law, also reviewed de
novo. United States v. Norbury, 492 F.3d 1012, 1014 & n.2
(9th Cir. 2007).
UNITED STATES v. SUAREZ 7423
III. Discussion
A. Inconsistent Verdicts
[1] Suarez argues that his acquittal on the possession
charge is “fatally inconsistent” with the jury’s guilty verdict
on the conspiracy charge because, he contends, the possession
count was the only overt act on which a conviction for con-
spiracy could have been based. Suarez’s challenge is without
merit. We need not decide whether the verdicts were actually
inconsistent, for it is well-established that “[i]nconsistent ver-
dicts may stand, even when a conviction is rationally incom-
patible with an acquittal, provided there is sufficient evidence
to support a guilty verdict.” United States v. Guzman, 849
F.2d 447, 448 (9th Cir. 1988) (quoting United States v. Bir-
ges, 723 F.2d 666, 673 (9th Cir. 1984)); see also United
States v. Dota, 33 F.3d 1179, 1187 (9th Cir. 1994) (“Jury ver-
dicts are insulated from review for inconsistency.”). We have
applied this rule to reject challenges to guilty verdicts in cases
that are factually indistinguishable from the case at bench. See
Hart, 963 F.2d at 1280-82 (rejecting the defendant’s chal-
lenge to his conviction for conspiracy to distribute cocaine
based on alleged inconsistency with acquittal for distribution
of cocaine); Guzman, 849 F.2d at 447-49 (rejecting the defen-
dant’s challenge to his conviction for conspiracy to possess
with intent to distribute cocaine based on alleged inconsis-
tency with acquittal for possession of cocaine). Consequently,
Suarez’s sentence on the conspiracy count should stand as
long as it is supported by sufficient evidence.
The evidence that Suarez conspired to possess or to distrib-
ute methamphetamine is sufficient if, viewing the evidence in
the light most favorable to the government, any rational trier
of fact could have found Suarez guilty beyond a reasonable
doubt of the elements of the crime. See United States v.
Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
“This review should be independent of the jury’s determina-
7424 UNITED STATES v. SUAREZ
tion that evidence on another count was insufficient.” United
States v. Powell, 469 U.S. 57, 67 (1984).
[2] The evidence presented to the jury, viewed in the light
most favorable to the government, was certainly sufficient for
a rational trier of fact to find Suarez guilty of conspiracy to
distribute methamphetamine. In order to prove a conspiracy
under 21 U.S.C. § 846, the prosecution must prove that: (1)
there was an agreement to accomplish an objective made
criminal by § 841(a)(1), which prohibits the knowing or inten-
tional distribution of or possession with intent to distribute a
controlled substance; and (2) the defendant intended to com-
mit the underlying offense. See United States v. Mincoff, 574
F.3d 1186, 1192 (9th Cir. 2009).
[3] Moreover, proof of an overt act in furtherance of the
conspiracy is not required in order to prove a violation of
§ 846; proof of an agreement alone is sufficient. United States
v. Shabani, 513 U.S. 10, 15-16 (1994). Such an agreement can
be shown through circumstantial evidence that the defendants
acted together in pursuit of a common illegal goal. Mincoff,
574 F.3d at 1192. The prosecution introduced voluminous
evidence that Flores and Suarez were working together to sell
five pounds of methamphetamine to the CS; the jury was thus
presented with ample reason to find that Suarez had made an
agreement with Flores to distribute the drug. We therefore
affirm Suarez’s conspiracy conviction as supported by suffi-
cient evidence.
B. Section 841(b)(1)(A) Sentence Enhancement
Section 841(b)(1)(A) provides for a twenty-year minimum
term of imprisonment for a defendant who has committed an
offense under § 841(b)(1)(A) “after a prior conviction of a fel-
ony drug offense has become final.” Suarez contends that his
guilty plea to felony drug possession in California, which
never resulted in the entry of a judgment of guilt by the Cali-
UNITED STATES v. SUAREZ 7425
fornia state court, does not trigger the application of
§ 841(b)(1)(A).1
The government argues in response that the Supreme
Court’s decision in Dickerson v. New Banner Institute, Inc.,
460 U.S. 103 (1983), overruled by statute as stated in United
States v. Brebner, 951 F.2d 1017, 1021 (9th Cir. 1991), con-
trols this case. In Dickerson, the Court held that the term
“conviction” under 18 U.S.C. § 922 includes state court con-
victions that were later expunged or dismissed without judg-
ment. Id. at 111-14.2 The Dickerson definition of “conviction”
has also been applied in our cases discussing the “prior con-
viction” requirement in § 841(b)(1)(A). Norbury, 492 F.3d at
1015 (holding that an expunged or dismissed state court con-
viction still qualifies as a “prior conviction” under
§ 841(b)(1)(A)).
The statute at issue in Dickerson (§ 922), however, unlike
§ 841(b)(1)(A), does not additionally require that the prior
conviction have “become final.” We must construe that added
provision as more than mere surplusage, and assume that it
has some meaning independent of the “prior conviction”
requirement. See United States v. Barraza-Lopez, 659 F.3d
1216, 1220 (9th Cir. 2011) (quoting Am. Vantage Cos. v.
Table Mountain Rancheria, 292 F.3d 1091, 1098 (9th Cir.
2002)).
Whether a conviction is “final” for purposes of a
§ 841(b)(1)(A) sentence enhancement is a question of federal,
1
Suarez also raises an equal protection challenge to his sentence
enhancement under § 841(b)(1)(A). Because this argument was not raised
before the district court below, we deem it waived. See Hillis v. Heineman,
626 F.3d 1014, 1019 (9th Cir. 2010).
2
At the time, 18 U.S.C. § 922(g) and (h) prohibited any person “who is
under indictment for, or who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year” from ship-
ping, transporting, or receiving any firearm or ammunition in interstate
commerce. Id. at 105.
7426 UNITED STATES v. SUAREZ
not state, law. United States v. Miller, 434 F.3d 820, 823 (6th
Cir. 2006); United States v. Ortega, 150 F.3d 937, 948 (8th
Cir. 1998); United States v. Cisneros, 112 F.3d 1272, 1280
(5th Cir. 1997). We have held that a conviction is not final
under § 841(b)(1) while that conviction is subject to direct
appellate review, including certiorari. Williams v. United
States, 651 F.2d 648, 649-51 (9th Cir. 1981); see also Miller,
434 F.3d at 823 (“[W]e have joined other federal circuit
courts in adopting the standard for determining finality: a con-
viction becomes final for the purpose of sentencing when the
time for taking a direct appeal from the judgment of convic-
tion has expired.”).
[4] This finality standard generally requires federal courts
to look to state law in order to determine when the time for
taking a direct appeal from the prior state conviction expires
or has expired. See, e.g., id. at 824 (defendant’s deferred entry
of judgment became a final conviction thirty days after he was
sentenced to probation, because that was the time provided for
appeal under Georgia law); United States v. Vasquez, 298
F.3d 354, 359 (5th Cir. 2002) (defendant’s deferred adjudica-
tion became a final conviction after thirty days, because Texas
law allows thirty days to appeal from deferred adjudication).
Thus, under prevailing case law, we would look to Califor-
nia’s rules of appeal to determine at what point Suarez’s prior
conviction became “final” for federal sentencing purposes.
[5] The circumstances of this case, however, have not been
addressed in previous discussions of when a prior conviction
becomes final under § 841(b)(1)(A). Under California law, no
appeal is possible from a § 1000.3 plea, unless and until the
defendant fails successfully to complete the court-ordered
rehabilitation program and judgment is entered against him.
See People v. Mazurette, 14 P.3d 227, 230 (Cal. 2001). This
is because, in California, a judgment or order is not appeal-
able unless expressly made so by statute, and the California
legislature has not made a deferred entry of judgment order
UNITED STATES v. SUAREZ 7427
under § 1000.3 appealable. See id. at 229-30.3 If a defendant
successfully completes the rehabilitation program, the charges
against him would be dismissed and no need would ever arise
for the defendant to appeal his guilty plea. Id. at 230. If, on
the other hand, the defendant fails to complete the program
and judgment is entered against him pursuant to § 1000.3,
then an appealable judgment would exist under California
law. Id.; Cal. Penal Code § 1237.
[6] Consequently, Suarez never had the right or opportu-
nity to appeal his guilty plea pursuant to § 1000.3. Because he
successfully completed the drug rehabilitation program, the
charge to which he pled guilty was dismissed, his guilty plea
was not considered a conviction “for any purpose” under Cal-
ifornia law, and his arrest was deemed to have never occurred.
Cal. Penal Code §§ 1000.1(d), 1000.4(a). We must therefore
consider whether Suarez’s guilty plea to a felony drug charge,
which was at no point appealable and was dismissed without
entry of judgment, nevertheless qualifies as a prior conviction
that has become “final” under § 841(b)(1)(A), a question of
first impression in our Circuit.
Traditional aids in statutory interpretation do not provide
much assistance in determining the meaning of the word
“final” in this context. Legislative history is of little help in
interpreting the exact contours of the phrase “has become
final” in § 841(b)(1)(A), because, as we have previously
observed, there is scant legislative background for the 1970
Congressional amendment that introduced the finality require-
ment to the statute. See Williams, 651 F.2d at 649. Two
3
In its 28(j) letter of February 16, 2012, the government correctly
pointed out that an order granting probation while judgment is deferred is
appealable under California law. See People v. Medina, 1 Cal. Rptr. 3d
546, 548 n.1 (Ct. App. 2003). That rule notwithstanding, there is no evi-
dence in this record that a probation order was ever issued in Suarez’s
case. Further, the California Supreme Court has held that an order defer-
ring entry of judgment is not to be treated like an order of probation for
purposes of appeal. See Mazurette, 14 P.3d at 231-32.
7428 UNITED STATES v. SUAREZ
factually-similar cases from our sister circuits have touched
upon the finality issue, but only obliquely. See Rivera-
Rodriguez, 617 F.3d 581, 609-10 (1st Cir. 2010); Ortega, 150
F.3d at 948.
In Ortega, the Eighth Circuit concluded that a Missouri
suspended sentence qualified as a prior felony conviction
which had become final within the meaning of
§ 841(b)(1)(A). See id. Much as in California, under Missouri
law a suspended sentence is not considered a final judgment
and, as such, is not appealable. See Mo. Rev. Stat. § 547.070.
The Ortega court did not recognize that fact in its opinion;
instead, the court focused its analysis on whether a Missouri
suspended sentence was a “prior conviction” under
§ 841(b)(1) and did not explicitly consider whether a convic-
tion that could never be appealed under state law could none-
theless be considered “final.” 150 F.3d at 948. As a result,
Ortega is of limited value in analyzing the question we must
resolve in this case.
In Rivera-Rodriguez, a defendant argued that a prior Puerto
Rican drug conviction was not “final” within the meaning of
§ 841(b)(1)(A) because no conviction or finding of guilt was
ever entered against him; consequently, under Puerto Rican
law, he could not take any appeal from his sentence of proba-
tion, which was later expunged from his record. 617 F.3d at
609. The First Circuit concluded that the probation sentence
qualified as a § 841(b)(1)(A) prior conviction. Id. at 609-10.
As in Ortega, however, the court failed to address the finality
issue raised by the defendant. This silence means that Rivera-
Rodriguez also does not directly address or resolve the ques-
tion before us. Moreover, Rivera-Rodriguez is distinguishable
in that the defendant there received a sentence of probation,
whereas Suarez was merely permitted by the California court
to participate in a drug education program and never received
a formal sentence of probation or otherwise.
We have recognized that the finality requirement in
§ 841(b)(1)(A) likely reflects a temporal concern, rather than
UNITED STATES v. SUAREZ 7429
a substantive one. See United States v. Guzman-Colores, 959
F.2d 132, 135 (9th Cir. 1992) (“Congress, by amending § 841
to provide that underlying convictions must be ‘final,’ had
most likely sought to eliminate the need for resentencing
should the underlying conviction subsequently be reversed.”).
As a result, a legally cognizable sentence that was never sub-
ject to appeal under state law likely could still constitute a
final prior conviction under § 841(b)(1)(A). See Dickerson,
460 U.S. at 111 (observing that, despite the fact that there was
no formal judgment of guilt entered in the defendant’s case,
there still remained: (1) a charge of a crime of a disqualifying
type; (2) a plea of guilty to that charge; and (3) the state
court’s placement of the defendant on probation).
[7] In light of this background, we conclude that, in order
to qualify as a final prior conviction under § 841(b)(1)(A), a
guilty plea must either: (1) ripen into a final judgment; or (2)
result in a legally cognizable sentence. Suarez’s plea does not
meet this standard.
First, as discussed above, Suarez’s plea never became an
appealable final judgment pursuant to California law. This
supports the conclusion that, at the time he pled guilty, pro-
ceedings in California court were still ongoing and therefore
not “final.” If Suarez had failed to complete his drug educa-
tion program, only then would he have been formally adjudi-
cated guilty; at that point, his conviction would have been
“final” as defined in Williams. 651 F.2d at 649-51. That is not
the case here.
Alternatively, Suarez’s plea never resulted in a legally cog-
nizable sentence, in that he was never placed on probation by
the California court, nor was he sentenced to a term of impris-
onment. Cf. Rivera-Rodriguez, 617 F.3d at 609 (holding that
a defendant placed on eighteen-month probation under a reha-
bilitation program had suffered a final prior conviction);
Ortega, 150 F.3d at 948 (8th Cir. 1998) (holding that a defen-
dant who was required to serve three years of supervised pro-
7430 UNITED STATES v. SUAREZ
bation had suffered a final prior conviction). Instead, Suarez
was not placed on probation, but was permitted by the Cali-
fornia court to participate in a privately-run drug education
program, which he then successfully completed. Suarez’s plea
therefore never took on either of the characteristics of a Dick-
erson “conviction”; consequently, there was no final prior
conviction within the meaning of § 841(b)(1)(A).
[8] In light of these considerations, we hold that, where a
plea never ripens into either a final judgment or a legally cog-
nizable sentence, there is no final prior conviction for pur-
poses of § 841(b)(1)(A). Suarez’s 2003 guilty plea and
participation in a drug rehabilitation program resulted in nei-
ther a formal entry of judgment by the state court nor a sen-
tence of imprisonment or probation. The district court
therefore erred in applying the twenty-year mandatory mini-
mum sentence under § 841(b)(1)(A) to Suarez.
IV. Conclusion
For the foregoing reasons, we affirm Suarez’s conviction
for conspiracy to distribute and to possess with intent to dis-
tribute methamphetamine, but we vacate Suarez’s sentence
and remand for resentencing in conformity with this opinion.
Conviction AFFIRMED; sentence VACATED and
REMANDED.