United States v. Tello

Case: 21-40427 Document: 00516299863 Page: 1 Date Filed: 04/28/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
April 28, 2022
No. 21-40427 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Adam Tello,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:19-CR-27-1
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Adam Tello was convicted by a jury of conspiracy to distribute and
possess with intent to distribute 50 grams or more of methamphetamine
(actual), and he was sentenced within the guidelines range to a 360-month
term of imprisonment and to a five-year period of supervised release. On
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 21-40427
appeal, Tello argues that insufficient evidence supported his conviction and
that his sentence should be vacated. We reject both arguments and affirm.
I.
Tello first contends that the evidence introduced to prove his guilt was
insufficient. Because Tello moved for a judgment of acquittal, our review is
de novo. See United States v. Rodriguez-Lopez, 756 F.3d 422, 430 (5th Cir.
2014). We will not overturn “the jury’s verdict if a reasonable trier of fact
could conclude from the evidence that the elements of the offense were
established beyond a reasonable doubt, viewing the evidence in the light most
favorable to the verdict and drawing all reasonable inferences from the
evidence to support the verdict.” United States v. Ragsdale, 426 F.3d 765,
770-71 (5th Cir. 2005) (internal quotation marks and citation omitted).
To convict Tello of conspiracy to distribute methamphetamine, the
Government had to prove (1) that there was an agreement between two or
more persons to violate the narcotics laws; (2) that Tello knew of the
agreement; and (3) that Tello voluntarily participated in the conspiracy. See
United States v. Zamora, 661 F.3d 200, 209 (5th Cir. 2011). Where, as here,
the Government seeks enhanced penalties based on drug quantity under 21
U.S.C. § 841(b)(1)(A)(viii), “the quantity must be stated in the indictment
and submitted to a jury for a finding of proof beyond a reasonable doubt.”
United States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000).
Citing Sears v. United States, 343 F.2d 139, 142 (5th Cir. 1965), Tello
asserts that testimony of the cooperating witnesses, Daniel Wesley Torres
and Ruben Luna, should be disregarded because, apart from them, there was
no evidence he had a conspiratorial agreement with anyone else during the
period alleged in the indictment. This contention is without merit as the
evidence showed that there were many other members of the conspiracy and
that Torres and Luna conspired with Tello prior to the periods when they
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No. 21-40427
were cooperating and prior to the period alleged in the indictment. See
United States v. Valdez, 453 F.3d 25, 259-60 (5th Cir. 2006).
Tello insists that Torres and Luna were not credible. He asserts that
there were multiple inconsistencies in Torres’s testimony and that Luna
initially identified another person as his source of supply. In general, this
court will not disturb a jury’s verdict or weigh the credibility of witnesses.
See United States v. Arledge, 553 F.3d 881, 888 (5th Cir. 2008). “[A]
conviction may be based even on uncorroborated testimony of an accomplice
or of someone making a plea bargain with the government, provided that the
testimony is not incredible or otherwise insubstantial on its face.” United
States v. Osum, 943 F.2d 1394, 1405 (5th Cir. 1991). Testimony will not be
“declared incredible as a matter of law unless it asserts facts that the witness
physically could not have observed or events that could not have occurred
under the laws of nature.” Id.The jury was instructed that the testimony of a cooperating
accomplice alone can be of sufficient weight to sustain a guilty verdict,
although such testimony should be received with caution and weighed with
great care. The jury was further instructed that it “should never convict a
defendant upon the unsupported testimony of an alleged accomplice unless
you believe that testimony beyond a reasonable doubt.” See Arledge, 553 F.3d
at 888. Tello does not assert that this instruction was inadequate. See id. at
888 n.1. Tello has not shown that Torres’s and Luna’s testimony was
incredible as a matter of law. See Osum, 943 F.2d at 1405. Furthermore, the
evidence showed that the offense involved more than 50 grams of
methamphetamine (actual), as alleged in the indictment. See Doggett,
230 F.3d at 165. The evidence was sufficient to support Tello’s conviction.
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II.
Tello raises two sentencing issues: (A) whether the district court erred
in increasing the offense level by two levels pursuant to U.S.S.G.
§ 2D1.1(b)(5) for importation of methamphetamine and (B) whether the
district court erred in increasing the offense level by two levels pursuant to
§ 2D1.1(b)(1) because a dangerous weapon was possessed. We engage in a
bifurcated review of the sentence imposed by a district court. See Gall
v. United States, 552 U.S. 38, 51 (2007). We first consider whether the court
committed a “‘significant procedural error,’ such as miscalculating the
advisory Guidelines range.” United States v. Odom, 694 F.3d 544, 547 (5th
Cir. 2012) (citation omitted). If there is no procedural error, or if any such
error is harmless, we “may proceed to the second step and review the
substantive reasonableness of the sentence imposed for an abuse of
discretion.” Id. A district court’s interpretation and application of the
Guidelines is subject to de novo review, while factual findings are reviewed
for clear error. United States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013). “A
factual finding is not clearly erroneous if it is plausible in light of the record
read as a whole.” United States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir.
2016) (internal quotation marks and citation omitted).
Under § 2D1.1(b)(5), a defendant’s offense level is increased by two
levels if the methamphetamine was imported and the defendant did not
receive a mitigating role adjustment. § 2D1.1(b)(5). For the enhancement to
apply, the Government must show by a preponderance of the evidence that
the offense involved the importation of methamphetamine. United States v.
Arayatanon, 980 F.3d 444, 452 (5th Cir. 2020), cert. denied, 142 S. Ct. 378(2021). There is no scienter requirement, and it is not necessary to show that
the defendant knew that the methamphetamine was imported. See id.4
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Although knowledge is not required, the Government asserts
correctly that Tello’s own statements, corroborated by Torres’s testimony,
show that he knew that the methamphetamine was imported. The evidence
provided an ample basis for imposition of the importation enhancement. See
Arayatanon, 980 F.3d at 452. Clear error has not been shown. See Gomez-
Valle, 828 F.3d at 327.
Under § 2D1.1(b)(1), two levels are added to a defendant’s offense
level if a dangerous weapon was possessed. § 2D1.1(b)(1). The Government
has the burden of proving by a preponderance of the evidence that the
defendant possessed the weapon and may do so by showing that there was a
temporal and special relationship between the weapon, the drug trafficking
activity, and the defendant establishing that the defendant personally
possessed the weapon. United States v. Ruiz, 621 F.3d 390, 396 (5th Cir.
2010). If that burden is met, the burden shifts to the defendant to show that
it was clearly improbable that the weapon was connected with the offense.
Id. at 396.
Torres and Luna both testified that Tello accepted guns as payment
for methamphetamine. This court has applied this enhancement in barter
cases. See United States v. Glenn, No. 93-4311, 1994 WL 24871, 6 (5th Cir.
Jan. 10, 1994) (unpublished); see, e.g., United States v. Harris, 829 F. App’x
64, 65 (5th Cir. 2020), cert. denied, 141 S. Ct. 1124 (2021); United States v.
Davis, 193 F. App’x 316, 318 (5th Cir. 2006). The testimony of Torres and
Luna was sufficient to prove by a preponderance of the evidence that
weapons were possessed by Tello in connection with the offense. See
§ 2D1.1, comment. (n.12); Ruiz, 621 F.3d at 396. The district court did not
clearly err in making this finding. See Gomez-Valle, 828 F.3d at 327.
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Tello has not rebutted the presumption of reasonableness accorded to
his within-guidelines sentence. See United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006). The judgment is AFFIRMED.
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