United States v. Margarito Padron

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-3925
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Margarito Padron, also known as *
Mitch Padron, * [UNPUBLISHED]
*
Appellant. *
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Submitted: April 14, 2000
Filed: June 12, 2000
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Before BOWMAN, MAGILL and HANSEN, Circuit Judges.
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PER CURIAM.
Margarito Padron appeals from his conviction by jury in the district court1 on
charges of (1) conspiracy to distribute methamphetamine and cocaine from February
1998 to June 1998 in violation of 21 U.S.C. § 846, (2) conspiracy to distribute
marijuana from February 1998 to February 1999 in violation of 21 U.S.C. § 846, and
(3) distribution of marijuana in violation of 21 U.S.C. § 841(a)(1). Padron claims the
1
The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
district court erred by denying his motion to merge the two conspiracies for multiplicity
in the indictment, and by applying a two-level enhancement for use of a minor in the
commission of crime pursuant to U.S.S.G. § 3B1.4. We affirm.
The evidence shows Padron was involved in two separate drug conspiracies,
which differed as to their time frames, their geographic locations, the level of
supervision Padron exercised over his co-conspirators, and even as to the main types
of drugs each conspiracy sold. There was no error in charging these conspiracies
separately. See United States v. Aguilera, 179 F.3d 1110, 1113 (8th Cir. 1999).
Furthermore, a two-level enhancement for use of a minor in the commission of
a crime is warranted in the present case. Under U.S.S.G. § 3B1.4, an enhancement is
merited "if the defendant used or attempted to use a person less than eighteen years of
age to commit the offense." Nothing in the guideline itself, or the commentary thereto,
even suggests, much less states, that actual knowledge of the age of the minor is
necessary. However, we need not reach that issue as the district court found Padron
did have actual knowledge that at least one of the two minors he was using as drug
runners was under eighteen.
Padron's further argument that he was not using the minors as the term "using"
is defined by the note to U.S.S.G. § 3B1.4 is without merit. Padron routinely gave
drugs directly to minors to be delivered to buyers, and in return the minors returned
drug proceeds to Padron. There can be no doubt that Padron was "using" the two
minors as defined in § 3B1.4.
After carefully reviewing the record and the parties' briefs, we affirm the
judgment for the reasons stated by the district court. See 8th Cir. R. 47B.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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