United States v. Chavez-Flores

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 9, 2010
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
No. 09-3252
v. (D.C. No. 2:07-CR-20143-CM-3)
(D. Kan.)
ARMANDO CHAVEZ-FLORES,
Defendant–Appellant.
ORDER AND JUDGMENT*
Before BRISCOE, LUCERO, and HOLMES, Circuit Judges.
Armando Chavez-Flores appeals his conviction and sentence after a jury found
him guilty of three drug-distribution charges. He contends that the presence of a United
States Marshal near the witness stand during his testimony deprived him of a fair trial,
and that the district court improperly calculated drug quantity in fashioning his sentence.
We reject both arguments. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
* At the parties’ request, the case is unanimously ordered submitted without oral
argument pursuant to Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 32.1.
I
Chavez-Flores was convicted by a jury of: (1) conspiracy to distribute and
possession with intent to distribute fifty grams or more of methamphetamine and
marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), (b)(1)(D), and 846; (2)
distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); and
(3) possession with intent to distribute five grams or more of methamphetamine in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii). When Chavez-Flores testified at
trial, a Marshal sat behind the witness chair. Chavez-Flores objected that the presence of
the Marshal was prejudicial, but the district court overruled the objection.
A Presentence Investigation Report (“PSR”) prepared for Chavez-Flores attributed
5270.55 grams of methamphetamine to him. This figure included methamphetamine
from specific deals discussed by confidential sources, and an estimated quantity derived
from a drug ledger found on Chavez-Flores when he was arrested. The drug ledger
contained information on methamphetamine sales over a sixteen-day period. Using a
“conservative estimate” of 1.25 ounces per day as revealed by the ledger, the PSR
estimated the conspiracy dealt 140 ounces (or 3968.93 grams) over a sixteen-week
period. The drug ledger estimate, specific methamphetamine sales, and relatively small
amounts of cocaine and marijuana discovered in Chavez-Florez’s residence resulted in a
total marijuana equivalent of 10,543.93 kilograms, and a base offense level of 36.
Rejecting Chavez-Florez’s argument that he should not be held accountable for the
entire sixteen-week period used in the PSR’s drug ledger extrapolation because he did not
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join the conspiracy until the middle of that time period, the district court sentenced
Chavez-Flores to 292 months’ imprisonment, at the bottom of his Guidelines range.
II
Chavez-Flores first argues that the positioning of a Marshal behind the witness
stand during his testimony violated his right to due process. We review a district court’s
decision to restrain a defendant for abuse of discretion. See United States v. Wardell, 591
F.3d 1279, 1293 (10th Cir. 2009). However, because security decisions trigger
constitutional concerns, such decisions bear “close judicial scrutiny.” Id. (quotation
omitted). The ultimate question of whether security procedures violate due process is
subject to de novo review. United States v. Lampley, 127 F.3d 1231, 1237 (10th Cir.
1997).
Chavez-Flores relies on case law related to the physical restraint of defendants.
Based on principles of due process, a defendant should not be visibly restrained unless
the practice is “essential” to courtroom security based on “the circumstances of the
particular case.” Deck v. Missouri, 544 U.S. 622, 624, 632 (2005). Visible restraints,
such as shackles, are “inherently prejudicial.” Id. at 635.
However, routine security measures that do not involve physical restraints are not
inherently prejudicial “so long as the[] numbers or weaponry [of security personnel] do
not suggest particular official concern or alarm.” Lampley, 127 F.3d at 1237 (quoting
Holbrook v. Flynn, 475 U.S. 560, 569 (1986)). This is because “shackling and prison
clothes are unmistakable indications of the need to separate a defendant from the
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community at large, [but] the presence of guards at a defendant’s trial need not be
interpreted as a sign that he is particularly dangerous or culpable.” Holbrook, 475 U.S. at
569. Thus, outside the shackling context, “we normally ask whether what the jurors saw
was so inherently prejudicial as to pose an unacceptable threat to defendant’s right to a
fair trial; if the challenged practice is not found inherently prejudicial and if the defendant
fails to show actual prejudice, the inquiry is over.” Gardner v. Galetka, 568 F.3d 862,
890 (10th Cir. 2009) (quotation and alteration omitted).
We agree with the district court that the placement of a single Marshal behind the
witness stand was not inherently prejudicial. As the district court explained, the Marshal
was dressed in plain clothes and behaved unobtrusively, sitting behind the witness stand
while Chavez-Flores was “testifying within steps of the jury, court staff, and a door
leading to a secured hallway.” In Lampley, we permitted the presence of numerous
plainclothes Marshals. 127 F.3d at 1237.
The minimal security presence at issue in this case was not inherently prejudicial,
but a standard and necessary element of courtroom security. Because Chavez-Flores
does not attempt to show actual prejudice, his due process challenge fails. See Gardner,
568 F.3d at 890.
III
Chavez-Flores also claims that the district court erred in calculating drug quantity
for sentencing purposes. “When reviewing a district court’s application of the
Sentencing Guidelines, we review legal questions de novo and we review any factual
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findings for clear error, giving due deference to the district court’s application of the
guidelines to the facts.” United States v. Martinez, 418 F.3d 1130, 1133 (10th Cir. 2005)
(quotation omitted). However, with respect to claims that were not presented below, we
review only for plain error. United States v. Smith, 413 F.3d 1253, 1274 (10th Cir.
2005). To prevail on plain error review, a litigant must show that a district court’s
decision: “(1) is erroneous; (2) is plainly so; and (3) that the error affects substantial
rights; if he satisfies these criteria, we may exercise discretion to correct the error only if
it seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
Id. (quotation omitted).
Chavez-Flores advances three distinct challenges to the drug quantity attributed to
him. First, he argues that the drug ledger extrapolation erroneously attributes to him
sixteen weeks’ worth of drug sales—from May 29, 2007, to September 18, 2007—
because he was not a member of the conspiracy until July 2007. One witness testified
that the first time she saw Chavez-Flores was July 2007 and another witness testified that
she met Chavez-Flores “a couple of weeks” after a codefendant moved into her home,
which occurred in mid-June. However, two other witnesses placed Chavez-Flores at drug
deals going back to January 2007. The district court’s use of a May 29 start date was not
clearly erroneous.
Second, Chavez-Flores contends that the drug ledger was insufficiently reliable.
Because he did not raise this issue before the district court, we review it only for plain
error. Although Chavez-Flores points to minor pricing inconsistencies in the ledger, and
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to the existence of cryptic symbols and Spanish slang, the PSR took these factors into
account by excluding unclear transactions to arrive at a more conservative estimate. See
United States v. Richards, 27 F.3d 465, 469 (10th Cir. 1994) (“a court must err on the
side of caution” in calculating drug quantity estimates). Moreover, a controlled buy
arranged by law enforcement officials investigating the conspiracy appeared in the
ledger, thus providing an additional indication of reliability. See United States v. Dalton,
409 F.3d 1247, 1251 (10th Cir. 2005) (drug quantity estimates permissible if supported
by “the facts of the particular case” and “sufficient indicia of reliability”). We conclude
that the district court did not err by relying on the ledger.
Third, Chavez-Flores objects that the use of both the ledger estimate and the
specific drug sales results in an inflated total because the estimate should already include
the specific drug sales. Like the previous argument, we review this claim only for plain
error because it was not raised below. We conclude that it was error to calculate drug
quantity in this fashion. If a court is using an estimate of daily sales volume, it generally
should not add specific sales into that estimate if the specific sales are subsumed by the
estimate.
Chavez-Flores provides the following analogy. If we know that a basketball
player averaged ten points per game over ten games, and we know that the player scored
eight points in one of those games, we would not conclude that he scored 108 points over
ten games. The single specific point total is already included in the average, and thus
should not be counted independently.
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There are two instances in which the drug ledger and the specific-sale evidence
overlap. A confidential source stated that codefendant Javier Hernandez obtained
approximately twenty-six ounces of methamphetamine over four weeks in August 2007.
One of his aliases, “Muerto,” is also listed in the ledger as purchasing $3000 worth of
methamphetamine, thus increasing the ledger estimate. The drug ledger also includes a
“CI purchase” of $1000 that restates a 27.6 gram purchase described as “CI9 purchased
methamphetamine” in the specific sale tally. The drug quantity calculation thus double
counts the “CI purchase” and the quantity of methamphetamine purchased by Hernandez
in the month of August by including those amounts in the drug ledger estimate, and also
adding those sales to the extrapolated total.1
Although this methodology was erroneous, it does not warrant reversal under the
plain error standard. Even assuming that the second and third prongs of the plain error
test are satisfied, Chavez-Flores has not demonstrated that the error “seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Smith, 413 F.3d at 1274(quotation omitted). Although the PSR focused on specific sales near the end of the
conspiracy, and used the drug ledger to extrapolate a conservative estimate of
methamphetamine sold over the course of the conspiracy, other evidence supported a
much higher drug quantity calculation.
1
The “CI Purchase” was direct double-counting because the same purchase that
was used to calculate the drug ledger estimate was also added as a specific purchase. In
contrast, Hernandez’s September purchases went into the ledger estimate calculation and
his August purchases were added as specific purchases.
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For example, the PSR reveals that one confidential source purchased
approximately thirty to forty pounds of methamphetamine from one of Chavez-Flores’
coconspirators. This source reported purchasing methamphetamine directly from
Chavez-Flores on five occasions. Another confidential source reported purchasing
between one ounce and eight ounces of methamphetamine from Chavez-Flores and his
coconspirators on twenty-five to thirty occasions. Yet none of this evidence was factored
into the drug quantity calculation contained in the PSR. Trial testimony similarly
suggested a much higher drug quantity total.
The district court chose to focus on a limited universe of evidence establishing
drug quantity, and was extremely conservative in tabulating that evidence. Although it
erred in calculating the quantity revealed by that smaller universe of evidence, a much
larger universe of evidence showing a much higher drug quantity was left unanalyzed. In
light of this other evidence showing a substantially higher drug quantity, we cannot say
that the sentencing process lacked fairness or integrity, nor can we declare that the public
reputation of judicial proceedings will be harmed as a result of the court’s error.
IV
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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