United States v. Fredy Parra-Chavez

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10350 OCTOBER 2, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-00220-CR-01-ODE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDY PARRA-CHAVEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 2, 2006)
Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
A jury convicted Fredy Parra-Chavez for: (1) conspiring to possess with
intent to distribute at least 50 grams of methamphetamine; and (2) attempting to
possess with intent to distribute at least 50 grams of methamphetamine. 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), 846. Parra-Chavez argues that the district court
erroneously denied a judgment of acquittal and clearly erred in imposing an
unreasonable 235-month sentence. We affirm.
I. BACKGROUND
On April 11, 2005, federal agents received a tip that a private plane landing
at Hartsfield Airport carried narcotics. Upon searching the plane with the consent
of its only passenger, Arturo Ochoa-Gonzalez, the agents found 13 pounds of
methamphetamine with a street value of approximately $91,000. Ochoa-Gonzalez
immediately cooperated with the agents. He admitted that he was running drugs
from Mexico to Atlanta and had done so once before. His practice was to call a
contact in Mexico to get the phone number of the intended recipient in Atlanta and
then call the intended recipient to arrange an exchange. The agents told Ochoa-
Gonzalez to continue with the exchange as planned.
Ochoa-Gonzalez’s contact in Mexico gave him the Nextel “Direct Connect”
number of Parra-Chavez, which was the same Atlanta number that Ochoa-
Gonzalez had called on his previous drug run. Ochoa-Gonzalez and Parra-Chavez
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arranged to meet where they met the first time, the Brooks Cafeteria in Atlanta.
Federal officers observed Parra-Chavez and two other men meet Ochoa-Gonzales
at the restaurant. After talking briefly, Parra-Chavez and his two companions left
the restaurant. About an hour later, they returned in two cars, one of which was a
green Camry. Parra-Chavez told Ochoa-Gonzalez that the money was in the trunk
of the Green Camry and handed him the keys. Ochoa-Gonzalez testified that
Parra-Chavez expected him to return the car with the drugs.
Federal agents arrested Parra-Chavez, seized his cell phone, and recovered
$317,720.00 from the Camry’s trunk. Phone records showed that Parra-Chavez
had been in contact with Ochoa-Gonzalez several weeks earlier and that Parra-
Chavez had also called Ochoa-Gonzalez’s contact in Mexico. Parra-Chavez was
charged with conspiracy to possess and distribute methamphetamine and
attempting to possess with intent to distribute methamphetamine. 21 U.S.C.
§§ 841(a)(1), (b)(1)(A).
At the close of the presentation of evidence by the government at trial,
Parra-Chavez moved for a judgement of acquittal. Fed. R. Crim. P. 29. Parra-
Chavez argued that the government had failed to present sufficient evidence to
prove his knowing involvement in a conspiracy or an attempt to possess and
distributed methamphetamine. Parra-Chavez argued that there was no evidence,
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save Ochoa-Gonzalez’s testimony, that Parra-Chavez had discussed, handled, or
asked for drugs or money. The district court denied the motion and a jury
convicted Parra-Chavez.
Applying the Federal Sentencing Guidelines, the probation officer found that
Parra-Chavez had a total adjusted base level of 38 and a criminal history category
of 1, which produced a sentencing range of 235 to 293 months. Parra-Chavez
argued that he should be sentenced below the guideline range because of his age,
lack of criminal history, and other considerations. 18 U.S.C. § 3553. He argued
that he should receive a downward adjustment for a minor role. U.S.S.G. § 3B1.2.
The court overruled Parra-Chavez’s objections and sentenced Parra-Chavez to
imprisonment for 235 months and supervised release of 5 years.
II. STANDARD OF REVIEW
Three standards of review govern this appeal. First, we review de novo
whether sufficient evidence supports a conviction, inquiring as to whether, after
viewing the evidence in the light most favorable to the government, any reasonable
jury could have found the essential elements of a crime beyond a reasonable doubt.
See United States v. Charles, 313 F.3d 1278, 1284 (11th Cir. 2002) (citations
omitted). All reasonable inferences are drawn in favor of the jury’s verdict.
United States v. Castro, 89 F.3d 1443, 1450 (11th Cir. 1996) (citations omitted).
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Second, we review a denial of a minor-role reduction for clear error. United States
v. De Varon, 175 F.3d 930, 937-38 (11th Cir. 1999) (en banc). To conclude that
the district court committed clear error, we must be “left with a definite and firm
conviction that a mistake has been committed.” United States v. Crawford, 407
F.3d 1174, 1177 (11th Cir. 2005) (quotation marks omitted). Third, we review a
sentence for reasonableness. See United States v. Talley, 431 F.3d 784, 785, 787
(11th Cir.2005). Review for reasonableness is deferential. Id. We reverse only if
“the sentence imposed by the district court fails to achieve the purposes of
sentencing as stated in section 3553(a).” Id. at 788.
III. DISCUSSION
A. The District Court Did Not Err by Denying Parra-Chavez’s Motion for
Acquittal.
The burden of proof that the government bore at trial on each of the two
charges is well-established. To sustain a conviction for conspiracy to possess with
intent to distribute methamphetamine, the government must offer sufficient
evidence to prove, beyond a reasonable doubt, that: (1) an illegal agreement existed
to possess with intent to distribute methamphetamine; (2) the defendant was aware
of the agreement; and (3) the defendant knowingly and voluntarily joined the
agreement. Charles, 313 F.3d at 1284. Where, as here, the government’s case is
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based on circumstantial evidence, “reasonable inferences, and not mere
speculation, must support the jury’s verdict.” Id. (internal quotations and citations
omitted). A defendant’s mere presence at the scene of the crime, while a probative
factor, is insufficient in itself to support a conspiracy conviction, as the
government must also prove that the defendant “knew the essential nature of the
conspiracy.” Id. (internal quotations and citations omitted). To sustain a
conviction for attempt to possess with intent to distribute methamphetamine, the
government must show that the defendant had the specific intent to engage in
criminal conduct and that he took a substantial step toward commission of the
offense. United States v. Baptista-Rodriguez, 17 F.3d 1354, 1369 (11th Cir. 1994).
To find that a substantial step was taken, the court must determine that the
defendant's objective acts mark the defendant's conduct as criminal so that the
defendant's acts as a whole strongly corroborate the required culpability. United
States v. Forbrich, 758 F.2d 555, 557 (11th Cir. 1985).
Parra-Chavez argues that insufficient evidence supported each of his
convictions, but we disagree. The evidence at trial established that Parra-Chavez
twice delivered large amounts of money to Ochoa-Gonzalez. On the first occasion,
Ochoa-Gonzalez testified that he returned Parra-Chavez’s car to him with drugs in
the trunk of the car. Cell phone records and the transcript of telephone
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conversations between Ochoa-Gonzalez and Parra-Chavez corroborated Ochoa-
Gonzalez’s testimony and revealed a pattern of business in drug transactions.
Federal agents watched as Parra-Chavez met with Ochoa-Gonzalez at the
restaurant, followed him while he drove to another location about 30 minutes
away, and, upon his return, saw him hand Ochoa-Gonzalez the keys to a car
containing a bag of money. It was neither unreasonable for the jury to find that the
delivery of money was a substantial step toward the possession and distribution of
methamphetamine nor for the jury to find that Parra-Chavez was a knowing and
willing participant in the conspiracy.
Parra-Chavez also argues that we should discount Ochoa-Gonzalez’s
testimony because he was only cooperating as part of a plea agreement. This
argument fails. Parra-Chavez had the opportunity to cross-examine Ochoa-
Gonzalez before the jury, and it is not for us to second guess the jury’s reasonable
decision to credit Ochoa-Gonzalez’s testimony. The district court did not err in
denying Parra-Chavez’s motion for judgment of acquittal.
B. The District Court Did Not Clearly Err By Denying Parra-Chavez a Minor Role
Reduction.
Section 3B1.2(b) of the United States Sentencing Guidelines provides for a
two-level reduction in a defendant’s base offense level if the court determines that
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the defendant was a minor participant in the offense. U.S.S.G. § 3B1.2(b). In De
Varon, we established a two-step inquiry for deciding whether a defendant played
a minor role. First, the district court “must measure the defendant’s role against
the relevant conduct attributed to [him] in calculating [his] base offense level.” De
Varon, 175 F.3d at 943-44. Second, the district court “may also measure the
defendant’s role against the other participants, to the extent that they are
discernable, in the relevant conduct.” Id. at 945. “[T]he district court may
consider only those participants who were involved in the relevant conduct
attributed to the defendant. The conduct of participants in any larger criminal
conspiracy is irrelevant.” Id. at 944. A conspiracy can exist in which no
participant plays a minor role. See United States v. Zaccardi, 924 F.2d 201, 203
(11th Cir. 1991).
Parra-Chavez argues that, because he had no involvement in the planning of
the drug transactions nor any contact with drug owners in Mexico and was a mere
“mule” who delivered money, the district court erred in denying him a minor-role
reduction. We disagree. Under the first step of the De Varon test, Parra-Chavez
failed to establish that he played a minor role in the relevant conduct for which he
was held accountable at sentencing. The evidence showed that Parra-Chavez
organized and executed the delivery of a large sum of money for the purchase of
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methamphetamine, and Parra-Chavez’s sentence is based on his role in that
offense. The evidence also showed that Parra-Chavez was not a minor participant
in comparison to other defendants. The district court did not commit clear error in
denying Parra-Chavez a minor-role reduction.
C. Parra-Chavez’s 235 month sentence is reasonable.
Parra-Chavez argues that his 235-month sentence is unreasonable because he
was a first time offender, was convicted on the basis of “the minimally
corroborating testimony” of Gonzalez, and is old enough that the sentence may last
his entire life. Again, we disagree. The district court imposed a sentence at the
bottom of the Guidelines range and less than the statutory maximum of life
imprisonment, both of which are indications of a reasonable sentence. See Talley,
431 F.3d at 788 (noting that “ordinarily we would expect a sentence within the
Guidelines range to be reasonable”); Winingear, 422 F.3d at 1246 (comparing the
sentence imposed to the statutory maximum in determining its reasonableness); 46
U.S.C. App. § 1903(g) and (j); 21 U.S.C. § 960(b)(1)(B)(ii). The district
court accounted for Parra-Chavez’s lack of criminal history by correctly
calculating the advisory Guidelines range using a criminal history category of 1.
The district court then considered the factors contained in section 3553(a) and
adequately accounted for the unique circumstances, if any, present in this case.
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Talley, 431 F.3d at 786. Parra-Chavez’s sentence is reasonable.
IV. CONCLUSION
Parra-Chavez’s conviction and sentence are AFFIRMED.
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