United States v. Siyam , 325 F. App'x 675 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 28, 2009
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 07-3352
v.
(D.C. No. 06-CR-20008-JWL)
(D. Kan.)
MOUSA SIYAM,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, HOLLOWAY, and HOLMES, Circuit Judges.
Mousa Siyam was convicted of conspiracy to possess and possession of
marijuana with the intent to distribute. He appeals his conviction, arguing that
the district court committed plain error in allowing over 200 kilograms of
marijuana that was seized from his vehicle to be displayed in the courtroom
during his trial. He also claims that there was insufficient evidence to sustain the
jury verdict on both counts. Lastly, he challenges his sentence and contends that
the district court erroneously calculated the drug quantity attributable to him and
*
This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
erroneously denied his request for a minor role adjustment.
The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We
exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM.
BACKGROUND
Mr. Siyam was a commercial limousine driver based in Atlanta, Georgia. In
December 2005, he was stopped by Trooper Phillips of the Kansas Highway Patrol.
Trooper Phillips had run the license tag on the limousine Mr. Siyam was driving and
found the license tag to be registered to another vehicle. 1 Mr. Siyam was
accompanied in the driver’s compartment by Terrence Bennett, the vehicle’s owner,
and, in a separate, passenger compartment, by Alfonso Ramirez-Martinez. When he
spoke to Mr. Siyam, the trooper immediately noticed an overwhelming smell of
cologne and air freshener, which he knew from his experience could be used to mask
drug odors. He also observed that Mr. Siyam was nervous: his hands were shaking,
he appeared fidgety, and he did not fully answer questions. The trooper asked where
they were coming from, and Mr. Siyam said they had been in Denver and were going
to Ohio.
After issuing a warning, the trooper asked for consent to search the vehicle,
which Mr. Bennett gave. When he opened the passenger door, the trooper could
1
Approximately two hours earlier, Mr. Siyam had been stopped by
another trooper. Because that trooper was experiencing symptoms that he
believed were indicative of a stroke, he terminated the traffic stop without asking
for consent to search the vehicle, even though the trooper found the information
Mr. Siyam provided him to be suspicious.
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smell raw marijuana. He found five duffle bags, which contained a total of 208.2
kilograms (approximately 460 pounds) of marijuana. He also found a can of air
freshener and a small suitcase. Although Mr. Siyam and Mr. Bennett had denied
having any luggage in the back of the vehicle, the trooper also discovered luggage
belonging to both men. The trooper arrested all three men.
A Drug Enforcement Administration agent later interviewed Mr. Siyam. Mr.
Siyam initially stated that he had been hired by a man named Luis to pick up a
musician—apparently referring to Mr. Ramirez—in Tucson, Arizona, and to drive
him to Columbus, Ohio. Mr. Siyam did not state that he had made other trips for
Luis. The agent then interviewed Mr. Bennett and learned that they had made a
similar trip for Luis in July, but there were only three duffle bags then, and that Mr.
Siyam had made a trip for Luis prior to that. He also said that Mr. Siyam had been
in contact with Luis throughout the trip. When the agent confronted Mr. Siyam with
this information, Mr. Siyam became agitated and then admitted that he had made one
prior trip. The agent then terminated the interview because he felt Mr. Siyam was
being untruthful.
At trial, Mr. Ramirez testified, pursuant to a plea agreement, that he had been
hired to accompany a load of marijuana from Arizona to Ohio in a limousine. The
men who hired him loaded the duffle bags into the limousine. When the limousine
stopped for gas during the trip, he first met Mr. Siyam, who opened the passenger
door and told Mr. Ramirez to stay in the vehicle and that he could use a bathroom at
another rest area. Mr. Ramirez said that he was in the limousine for 40 to 48 hours,
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without stopping except for food, gasoline, and restroom breaks; he slept in the
limousine.
Mr. Siyam also testified at trial. He said Luis had hired him to drive a fare
from Arizona to Ohio in the past. As to the present trip, Mr. Siyam explained that
they did not stop because Mr. Ramirez did not want to; said that he told Trooper
Phillips they were coming from Denver because he had been asked where they “just”
were; and said that he was very upset when he learned the client (i.e., Ramirez) had
marijuana in the vehicle.
During Trooper Phillips’s testimony, the government introduced the marijuana
into evidence. It was removed after Mr. Siyam completed his cross-examination of
the trooper. The government brought the marijuana back out for a portion of its
closing argument. When a juror had allergy symptoms that were exacerbated by the
marijuana, the government immediately removed it from the courtroom. The
marijuana was displayed for no more than two hours in total during the trial.
The jury returned a guilty verdict on both counts. At sentencing, Mr. Siyam
objected to the drug quantity calculation and the absence of a minor role reduction.
The court overruled these objections. Mr. Siyam’s offense level was 30, resulting in
a 97-121 month Guidelines range. The court sentenced him to 97 months’
imprisonment and indicated that regardless of the drug quantity objection, he would
have received the same 97 month sentence. Sustaining Mr. Siyam’s drug quantity
objection would have given him an offense level of 28, which has a 78-97 month
Guidelines range.
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DISCUSSION
I. Display of Evidence
Mr. Siyam first argues that the presence of the marijuana evidence in the
courtroom during the trial unduly prejudiced his substantial rights. He contends
that the marijuana smell was so pervasive that it “violated his due process rights
under the Fifth Amendment and the protections in Fed. R. Evid. 403.” Aplt. Br.
at 15. Mr. Siyam concedes that there was no contemporaneous objection to the
pervasiveness of the marijuana odor. Thus, plain error review applies.
To establish plain error, Mr. Siyam must establish that the district court (1)
committed error, (2) that was plain, and (3) that affected his substantial rights.
United States v. Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005). If he demonstrates
that all three conditions are met, he then must show that an exercise of the court’s
discretion is appropriate because the error affects the integrity, fairness, or public
reputation of judicial proceedings. Id. at 1174, 1178. If Mr. Siyam demonstrates
that the alleged error is a constitutional error, “we relax our analysis on the
remaining elements of plain error review.” Id. at 1174.
We need not resolve whether it was error to allow the marijuana to be
physically present in the courtroom. Even assuming this was error, Mr. Siyam
has not shown that the alleged error was “plain.” For an error to be plain, it must
be “clear or obvious under current, well-settled law.” Id. (internal quotation
marks omitted). In general, for an error to be clear or obvious under current,
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well-settled law, “either the Supreme Court or this court must have addressed the
issue. [Though], [t]he absence of such precedent will not . . . prevent a finding of
plain error if the district court’s interpretation was clearly erroneous.” United
States v. Ruiz-Gea, 340 F.3d 1181, 1187 (10th Cir. 2003) (internal quotation
marks and citation omitted).
Mr. Siyam has not pointed to any binding precedent from the Supreme
Court or Tenth Circuit regarding whether it is error to allow marijuana to be
physically present in the courtroom. Furthermore, other authorities do not offer
clear guidance. Even from Mr. Siyam’s perspective, there at best is one case
from the Seventh Circuit, United States v. Garcia, 986 F.2d 1135 (7th Cir. 1993),
that arguably suggests it was an abuse of discretion to permit the marijuana to
remain in the courtroom. However, Garcia is distinguishable. In that case, the
Seventh Circuit admonished the district court for permitting containers of
marijuana to remain open during the defendant’s case-in-chief. Garcia, 986 F.2d
at 1141-42. Here, the marijuana was not in an open container. The marijuana
presented by the government during the trial was repackaged, after forensic testing,
in plastic bags with sealed ends. Further, the marijuana was displayed only during
the direct and cross examinations of Trooper Phillips and part of the government’s
closing arguments.
We do not consider, however, the time the marijuana was displayed during
Trooper Phillips’s cross examination as part of the “total time of display.” That is
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because Mr. Siyam was advised by the district court that he could remove the
marijuana at the conclusion of the government’s direct examination, but he chose
to not have it removed. Mr. Siyam thus effectively waived this part of his
argument and we will not review it on appeal. See United States v. Carrasco-
Salazar, 494 F.3d 1270, 1272 (10th Cir. 2007) (“[W]aiver is the intentional
relinquishment or abandonment of a known right.” (internal quotation marks
omitted) (quoting United States v. Olano, 507 U.S. 725, 733(1993))); United
States v. Jones, 530 F.3d 1292, 1298 n.1 (10th Cir.) (“Generally, ‘there is no
appeal from a violation of a waived right.’” (quoting United States v. Aptt, 354
F.3d 1269, 1281 (10th Cir. 2004))), cert. denied, 129 S. Ct. 583 (2008). Having
marijuana displayed in sealed plastic bags only during the government’s direct
examination of its witness and part of its closing argument is clearly different
from the situation where marijuana is displayed in an open container during the
defendant’s entire case-in-chief. Consequently, Garcia is distinguishable.
Other cases addressing this issue have concluded, under circumstances
similar to the instant case, that the presence of marijuana was not prejudicial. See
United States v. Ramos Rodriguez, 926 F.2d 418, 421 (5th Cir. 1991) (holding
that the presence of 227 pounds of marijuana in the courtroom during trial was
neither a violation of Fed. R. Evid. 403 nor a due process violation, because
“[t]he jury did not view the marijuana for any unreasonable length of time; the
Government’s case lasted a mere four hours” and the defendant did not show that
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the government acted in bad faith); United States v. Dunn, 961 F. Supp. 249, 251-
52 (D. Kan. 1997) (holding that the odor of marijuana in the courtroom did not
create an unfair prejudice where the marijuana was properly admitted into
evidence, the marijuana packages were not open, the marijuana was not present
during the defendant’s case-in-chief, and the defendant was able to argue the
difference in the odor-producing circumstances between what was presented in
the courtroom and how it was found); accord McKenzie v. State, 208 S.W.3d 173,
179-80 (Ark. 2005) (holding that the odor of marijuana in the courtroom was not
unduly prejudicial where the marijuana was removed from the courtroom at the
end of the testimony of the three witnesses who had been in contact with it).
Given this state of the law, we cannot conclude that the alleged error was
clear or obvious under current, well-settled law. Accordingly, we cannot find the
district court committed plain error.
II. Sufficiency of the Evidence
Mr. Siyam next contends that there was insufficient evidence to support his
conviction. In reviewing a challenge to the sufficiency of the evidence, we view the
evidence in the light most favorable to the government and affirm unless no
reasonable jury, when presented with the trial evidence and all reasonable inferences
therefrom, could find the defendant guilty beyond a reasonable doubt. United States
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v. Schaefer, 501 F.3d 1197, 1199-1200 (10th Cir. 2007). 2 We do not view each piece
of evidence in a vacuum; we consider the collective inferences drawn from the
evidence as a whole. An inference is reasonable “only if the conclusion flows from
logical and probabilistic reasoning.” United States v. Jones, 44 F.3d 860, 865 (10th
Cir. 1995).
Mr. Siyam was convicted of (1) conspiracy to distribute and possess with
2
Mr. Siyam has argued for application of the plain error standard,
citing our decision in United States v. Cox, 929 F.2d 1511 (10th Cir. 1991). Aplt.
Br. at 18-19. Although he has insisted that his sufficiency of the evidence
challenge is not waived, Mr. Siyam has indicated that the more-rigorous plain
error standard should govern our review of the challenge because “Mr. Siyam did
not renew his motion for judgment of acquittal after the jury verdicts.” Id. at 18
(emphasis added). We appreciate Mr. Siyam’s forthright approach. However, he
has misread Cox and is mistaken about his obligations with respect to filing a
motion for judgment of acquittal under Fed. R. Crim. P. 29. Cox addressed the
situation where the “Defendant moved for a motion to dismiss based on
insufficiency of evidence” after “the government rested,” but then “[a]t the close
of all the evidence” he did not “renew his earlier motion.” 929 F.2d at 1513. In
that circumstance, we determined that plain error review was appropriate. Id. at
1514; see also United States v. Goode, 483 F.3d 676, 681 n.1 (10th Cir. 2007) (en
banc footnote) (clarifying that “a forfeited claim of insufficient evidence must be
reviewed under the plain-error standard” (emphasis added)). Cox’s holding reflects
an unremarkable stance, which appears to have been uniformly taken by other
federal courts. See, e.g., 2A Charles Alan Wright, Federal Practice & Procedure §
469, at 322-23 (3d ed. 2000) (noting “the rule that if the defendant does move for
acquittal at the close of the government’s case, but fails to renew the motion at the
close of all the evidence, he has waived his earlier objection,” but noting that “there
is an escape from the [waiver] doctrine” that “[a]ll courts recognize” which allows
them to “review the evidence and reverse if the error is bad enough”). Mr. Siyam,
however, is not similarly situated to the defendant in Cox. He moved for a judgment
of acquittal at the close of the government’s case, R., Vol. VII, Tr. at 467; and then
renewed the motion at the close of his case, id., Vol. VIII, Tr. at 748-49, and also at
the close of all of the evidence, id., Tr. at 763-64. In order to preserve his challenge
to the sufficiency of the evidence for appellate review, Mr. Siyam was not obliged
under Fed. R. Crim. P. 29 to then take the additional step of renewing his motion
after the jury verdict. Accordingly, plain error review is not appropriate here.
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intent to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. §
846, with reference to 21 U.S.C. § 841(a)(1) and (b)(1)(B)(vii); and (2) possession
with intent to distribute 100 kilograms or more of marijuana, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(B)(vii) and 18 U.S.C. § 2. In order to prove a
defendant guilty of participating in a drug conspiracy under § 846, the government
must prove (1) the existence of a drug conspiracy (i.e., an agreement to violate the
drug laws); (2) the defendant knew of the conspiracy and its essential objectives; and
(3) the defendant knowingly and voluntarily became a part of the conspiracy. See
United States v. Smith, 534 F.3d 1211, 1221 (10th Cir.), cert. denied, 129 S. Ct. 654(2008); United States v. Green, 175 F.3d 822, 832 (10th Cir. 1999). In order to
prove a defendant guilty of possession with intent to distribute illegal drugs, the
government must prove that the defendant “(1) knowingly possessed the illegal drug,
and (2) did so with the intent to distribute it.” United States v. Triana, 477 F.3d
1189, 1194 (10th Cir.), cert. denied, 127 S. Ct. 2928 (2007).
Although Mr. Siyam purports to challenge his convictions for the drug
conspiracy and the substantive drug offense, his arguments focus exclusively on
whether Mr. Siyam possessed the requisite knowledge of the drugs and the intent to
distribute them. See Aplt. Br. at 20 (“The key issues for Mr. Siyam revolve around
whether there was sufficient proof of knowledge and intent.”). Therefore, it is
appropriate for that focus to guide our analysis.
Mr. Siyam contends that the government failed to prove both knowledge and
intent. We disagree. First, the totality of the evidence, in the light most favorable to
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the government, supports the conclusion that Mr. Siyam had knowledge of the
marijuana. A jury may infer that the driver of a vehicle has knowledge of drugs
contained within it. United States v. Gwathney, 465 F.3d 1133, 1143 (10th Cir.
2006); see also United States v. Badilla, 419 F.3d 1128, 1132 n.1 (10th Cir. 2005)
(stating the inference of knowledge of hidden drugs was supported where the
driver owned the truck, the marijuana had an estimated value of at least $119,515,
the hidden compartment was visible, and there was a large volume and weight of
the drugs); United States v. Cota-Meza, 367 F.3d 1218, 1224 (10th Cir. 2004)
(finding the jury could make an inference of knowledge of hidden drugs, inter
alia, because the drugs were readily discoverable).
Here, Mr. Siyam was the driver of the limousine. The marijuana was easily
discoverable. The marijuana was located in the passenger compartment of the
limousine, stacked in five large duffle bags. The duffle bags contained a total of
208.2 kilograms of marijuana. A can of air freshener—a product often used to mask
the odor of marijuana—and Mr. Siyam’s luggage also were found in the passenger
compartment with the marijuana. The amount of marijuana was significant: it had a
street value of approximately $918,000. Cota-Meza, 367 F.3d at 1224 (“This court
has repeatedly recognized that the value of drugs can support an inference of
knowledge.”); see Badilla, 419 F.3d at 1132 n.1 (noting that given the high value
of contraband, it is unlikely that the owner of the contraband “would allow it to
be stored and transported in a vehicle which is owned and driven by someone who
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had no knowledge of its presence”); see also United States v. Pollock, 926 F.2d
1044, 1050 (11th Cir. 1991) (noting that one million dollars worth of cocaine
supports an inference of knowledge of the contraband because “[a] jury reasonably
could conclude that no drug smuggler would entrust a shipment worth a million
dollars to an outsider”). Furthermore, Mr. Siyam’s nervousness with regard to his
interaction with the officer, when considered with the other evidence, could also
support the inference that Mr. Siyam had knowledge of the marijuana. See United
States v. Zhang, 458 F.3d 1126, 1128 (10th Cir. 2006) (“Testimony about
[Defendant’s] generally nervous behavior is another factor that the jury may have
evaluated in considering the evidence presented.”).
There also was other evidence to support the logical conclusion that Mr.
Siyam was aware of the marijuana. Mr. Siyam lied to law enforcement about
previous trips, lied about where they were coming from, and treated his passenger,
Mr. Ramirez, in a manner that was not consistent with what would be expected, if
the passenger had paid for the transport (i.e., telling the passenger when he could
and could not take bathroom breaks). These facts, in total, support the conclusion
that Mr. Siyam had knowledge of the marijuana in the limousine.
Second, “a jury may infer intent to distribute from the possession of large
quantities of drugs.” United States v. Pulido-Jacobo, 377 F.3d 1124, 1131 (10th Cir.
2004); see United States v. Poe, 556 F.3d 1113, 1126 (10th Cir. 2009); United States
v. Delreal-Ordones, 213 F.3d 1263, 1268 n.4 (10th Cir. 2000) (“[W]e have
repeatedly stated that possession of a large quantity of narcotics is sufficient to
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establish the element of intent to distribute.”). Here, 208.2 kilograms of marijuana
were seized incident to Mr. Siyam’s arrest. This evidence, alone, was sufficient for
the jury to infer that Mr. Siyam (with knowledge of the marijuana’s presence) had
the intent to distribute the drugs. Overall, there was sufficient evidence to show that
Mr. Siyam had knowledge of, and the intent to distribute, the marijuana.
III. Procedural Reasonableness
Lastly, Mr. Siyam challenges his sentence and contends that the district
court erroneously calculated the drug quantity attributable to him and erroneously
denied his request for a minor role adjustment. We review a federal criminal
sentence for reasonableness, giving deference to the district court under “the familiar
abuse-of-discretion standard.” Gall v. United States, 128 S. Ct. 586, 594 (2007); see
United States v. Gambino-Zavala, 539 F.3d 1221, 1227 (10th Cir. 2008) ; United
States v. Smart, 518 F.3d 800, 805 (10th Cir. 2008). “[R]easonableness includes
both a procedural component, encompassing the method by which a sentence was
calculated, as well as a substantive component, which relates to the length of the
resulting sentence.” Smart, 518 F.3d at 803 ; see also Gall, 128 S. Ct. at 597. Mr.
Siyam only challenges the procedural reasonableness of his sentence. 3 In
3
Mr. Siyam asserts in his brief that his sentence is not substantively
reasonable. However, while he made an argument based on 18 U.S.C. § 3553 at
sentencing, he does not advance any such argument on appeal. Instead, under the
heading of substantive reasonableness in his brief, he argues that because his
offense level should be lowered by the use of a lesser drug quantity and minor
role reduction, his current sentence is unreasonable. This argument is not a
(continued...)
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determining whether the district correctly calculated the recommended Guidelines
range, we review the district court’s legal conclusions de novo and factual findings
for clear error. United States v. Todd, 515 F.3d 1128, 1135 (10th Cir. 2008).
A. Drug Quantity
Drug quantity is a factual finding that we review for clear error. United
States v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005). We will reverse only if
the district court’s finding “was without factual support in the record or we are
left with the definite and firm conviction that a mistake has been made.” Id.(quoting United States v. Ryan, 236 F.3d 1268, 1273 (10th Cir. 2001)). “If the
district court’s account of the evidence is plausible in light of the record viewed
in its entirety, the court of appeals may not reverse it even though convinced that
had it been sitting as the trier of fact, it would have weighed the evidence
differently.” Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)
(emphasis added).
“‘The government has the burden of proving the quantity of drugs for
sentencing purposes by a preponderance of the evidence.’” Ryan, 236 F.3d at
1273 (alteration omitted) (quoting United States v. Hooks, 65 F.3d 850, 854 (10th
Cir. 1995)). “Narcotics need not be seized or tested to be held against a
defendant at sentencing.” United States v. Verdin-Garcia, 516 F.3d 884, 896
3
(...continued)
substantive reasonableness argument, but a procedural reasonableness argument.
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(10th Cir.), cert. denied, 129 S. Ct. 161 (2008). In situations where the actual
drugs underlying the drug quantity determination are not seized, “the trial court
may rely upon an estimate to establish the defendant’s guideline offense level so
long as the information relied upon has some basis of support in the facts of the
particular case and bears sufficient indicia of reliability.” Dalton, 409 F.3d at
1251 (internal quotation marks omitted); see Verdin-Garcia, 516 F.3d at 896; see
also United States v. Garcia, 994 F.2d 1499, 1508 (10th Cir. 1993) (“While the
court may rely on a government estimate in approximating the quantity of drugs,
the information underlying the estimate must possess ‘a minimum indicia of
trustworthiness.’” (citation omitted) (quoting United States v. Cook, 949 F.2d
289, 296 (10th Cir. 1991))); cf. U.S.S.G. § 2D1.1 cmt. 12 (“Where there is no
drug seizure . . . the court shall approximate the quantity of the controlled
substance.”).
“[W]hen choosing between a number of plausible estimates of drug
quantity, none of which is more likely than not the correct quantity, a court must
err on the side of caution.” United States v. Richards, 27 F.3d 465, 469 (10th Cir.
1994) (internal quotation marks omitted). We have previously observed that “the
need to estimate drug quantities at times is not a license to calculate drug
quantities by guesswork.” Dalton, 409 F.3d at 1251 (internal quotation marks
omitted).
Nevertheless, this court has, in a variety of circumstances, upheld drug
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quantity determinations based upon estimates. See Garcia, 994 F.2d at 1508(collecting cases); see, e.g., United States v. Sturmoski, 971 F.2d 452, 462 (10th
Cir. 1992) (estimate based on amount of precursor chemicals seized); Cook, 949
F.2d at 295-96 (estimate based on witness testimony that defendant sold specified
dollar amount of drugs over specified time period); United States v. Short, 947
F.2d 1445, 1456-57 (10th Cir. 1991) (estimate based on the characteristics of drug
laboratory); United States v. Shewmaker, 936 F.2d 1124, 1130 (10th Cir. 1991)
(estimate based on aerial observation of marijuana field); United States v. Harris,
903 F.2d 770, 778 (10th Cir. 1990) (estimate based on defendant’s business
records).
In United States v. Brown, 311 F.3d 886 (8th Cir. 2002), the police seized
approximately three kilograms of cocaine from the defendant’s bag upon arrest.
The police also found four rental car receipts for prior trips along the alleged drug
trade route. The defendant, at trial, admitted to making these four trips. The
district court calculated the drug quantity attributable to the defendant by
estimating that each of the four prior trips involved approximately the same
quantity of drugs as was seized upon the defendant’s arrest. Id. at 889.
The Eighth Circuit affirmed this calculation, noting that while there was no
evidence of the specific quantities involved in the four prior trips, the district
court’s drug quantity estimate was reasonable and not clearly erroneous. Id.; see
also United States v. Oleson, 44 F.3d 381, 385-86 (6th Cir. 1995) (finding that the
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district court did not clearly err in estimating drug quantity by multiplying the
amount of drugs seized upon arrest by the number of trips made, when there was
no direct evidence of the precise quantity of drugs transported during the prior
trips), overruled on separate grounds by United States v. Reed, 77 F.3d 139 (6th
Cir. 1996) (en banc).
Here, the district court adopted the recommendation of the presentence
report, which stated:
The defendant is accountable for the 208.2 net kilograms of
marijuana seized from five duffle bags on December 15, 2005.
Additionally, it was reported that two other trips were made by
the defendant for Luis LNU [Last Name Unknown] that were
similar in nature. According to Bennett, in July 2005, the
defendant transported three duffle bags from Arizona to Ohio
for Luis LNU. It was estimated that each bag contained
approximately 41.64 kilograms of marijuana [based upon the
per bag quantity found during the December 2005 trip] which
equates to approximately 124.92 net kilograms. Assuming the
trip made with Cory LNU [in Summer 2004] was the same
amount, 124.92 net kilograms of marijuana, the defendant is
responsible for a total of 458 kilograms of marijuana which
equates to a base offense level of 28. U.S.S.G. § 2D1.1(c)(6).
R., Vol. IX, ¶ 28 at 8 (Presentence Report, dated March 8, 2007) [hereinafter,
“PSR”]. The district court limited the relevant conduct to only these three trips.
There was evidence of a fourth trip, but there was no information regarding
parties involved, money paid for the trip, or the circumstances of the trip. On
appeal, Mr. Siyam does not contest the 208.2 kilograms of marijuana seized at his
arrest. He only challenges the drug quantity estimated from the reported two
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other trips—July 2005 and Summer 2004—made by him for Luis. After review of
the record, we are convinced that the district court did not clearly err by
attributing 249.84 kilograms of marijuana to Mr. Siyam for his involvement in the
July 2005 and Summer 2004 trips.
Evidence was presented at trial that Mr. Siyam made a trip in July 2005
similar in nature to the trip he made in December 2005, when the officers seized
208.2 kilograms of marijuana from five duffle bags. The July 2005 trip involved
only three duffle bags. The prosecutor produced evidence that Mr Siyam “had a
made a trip to Tucson in July [with Mr. Bennett] and . . . they had transported a
single Hispanic male to Columbus, Ohio, with three of [the same large, black,
duffle bags used to transport the marijuana in December 2005].” R., Vol. VII, Tr.
at 303-04 (Trial Tr., dated Jan. 16-19, 2007). Further, evidence showed that Mr.
Siyam and Mr. Bennett were working for Luis, the same individual who supplied the
marijuana for the December 2005 trip. Mr. Siyam’s testimony corroborated this
evidence. He testified that in July 2005 Luis hired him to make a trip from
Tucson, Arizona to Columbus, Ohio and that he recruited Mr. Bennett to make the
trip with him. 4 On appeal, Mr. Siyam does not contest that the trip occurred, or the
4
At sentencing, the district court found with respect to different
aspects of Mr. Siyam’s trial testimony that he willfully obstructed justice by
committing perjury. R., Vol. V, Tr. Tr. at 1097 (Sentencing Proceeding, dated
Nov. 29, 2007). The district judge noted that, “[Mr. Siyam’s] testimony was that
he had no knowledge that there was marijuana in his [sic] back of his vehicle. I
believe he knowingly testified falsely about that.” Id.
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number of duffle bags involved. He only challenges the assumption concerning the
contents of the duffle bags and their approximate weight.
There was clear record support, however, for the district court’s
determinations about the contents of the duffle bags and their weight. The evidence
relating to the similarity in modus operandi between the July 2005 and December
2005 trips—that is, evidence describing trips involving Mr. Siyam and Mr.
Bennett, the same route, the same supplier, and similar sized, black duffle
bags—was sufficient to support the conclusion that the duffle bags on the July
2005 trip contained marijuana. Further, each duffle bag seized in December 2005
contained approximately 41.64 kilograms of marijuana. Given the similar pattern
of operation, evidence that the July 2005 trip used large, black duffle bags similar
to those used in the December 2005 trip was sufficient to support the conclusion
that the same amount of marijuana was in each bag in the July 2005 trip. See
United States v. Rodriguez, 525 F.3d 85, 107-09 (1st Cir. 2008) (estimating the
quantity of drugs attributable to the defendant by weighing the contents of fifty
bags of cocaine acquired by the government through an undercover operation,
approximating the amount of cocaine in each bag, and approximating the number
of bags attributable to defendant during the time in question); 5 see also U.S.S.G. §
5
While the First Circuit found that the district court clearly erred in
finding that six sellers worked every day selling cocaine, instead of three workers,
the general method of estimating the drug quantity was held to be proper.
Rodriguez, 525 F.3d at 108-09.
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2D1.1 cmt. 12 (“In [estimating the quantity of a controlled substance], the court
may consider . . . similar transactions in controlled substances by the defendant . .
. .” (emphasis added)).
The district court’s findings concerning the July 2005 trip, therefore, were
neither far reaching nor mere guesswork. They found support in the facts of this
particular case. More specifically, the district court’s finding was plausible in
light of the record viewed in its entirety and we are not left with a firm conviction
that a mistake has been made. Accordingly, we cannot say that the court clearly
erred in attributing to Mr. Siyam 124.92 kilograms of marijuana (three bags, each
containing 41.64 kilograms of marijuana) for his involvement in the July 2005
trip.
As for the Summer 2004 trip, evidence was presented at trial that Mr.
Siyam made a trip during this period similar in nature to the December 2005 trip.
The Summer 2004 trip involved the same route as the December 2005 trip—that
is, from Tucson, Arizona to Columbus, Ohio—and involved the same supplier,
Luis. There was no evidence as to whether any duffle bags were transported in
the Summer of 2004. However, there was evidence that Mr. Siyam was paid
$6,000 for the trip—the same amount he charged Luis for the July 2005 trip, and
similar to $6,500 he was paid for the December 2005 trip. 6
6
Mr. Siyam testified that he charged Luis $6,500, instead of $6,000,
(continued...)
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Although this is a somewhat closer call than our decision regarding the July
2005 trip due to the absence of duffle-bag evidence, we conclude that the district
court did not clearly err in finding that there was sufficient evidence to attribute
124.92 kilograms of marijuana to Mr. Siyam. We are not firmly convinced on
this record that the district court committed a mistake in its drug quantity
estimation. Evidence of a similar modus operandi between the Summer 2004 and
December 2005 trips provided significant support for the district court’s finding
that on both trips Mr. Siyam was transporting drugs. Furthermore, the district
court could have reasonably inferred from the similar amounts that Luis paid Mr.
Siyam that, not only was Luis compensating Mr. Siyam for engaging in similar
activity—that is, transporting drugs—but also that he was compensating Mr.
Siyam for bearing a similar responsibility during the transport based upon a
similar quantity of drugs. See Brown, 311 F.3d at 889; Oleson, 44 F.3d at 385-
86. Indeed, the district court’s attribution of the equivalent of only three duffle
bags of marijuana to Mr. Siyam for the Summer 2004 trip was a conservative
estimate, and properly so, which was based on the size of the July 2005 load
rather than the December 2005 load of five duffle bags. See Richards, 27 F.3d at
469 (noting that “a court must err on the side of caution” (internal quotation
marks omitted)). In sum, we conclude that the district court’s drug quantity
6
(...continued)
for the December 2005 trip because of the increase in gas prices.
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finding concerning the Summer 2004 trip was “plausible in light of the record
viewed in its entirety.” Anderson, 470 U.S. at 573-74 (“Where there are two
permissible views of the evidence, the factfinder’s choice between them cannot be
clearly erroneous.”). We cannot say, therefore, that the district court clearly erred
in its drug quantity estimations concerning the July 2005 and Summer 2004 trips.
B. Minor Role Reduction
A defendant may qualify for a two-level reduction for being a minor
participant in criminal activity. U.S.S.G. § 3B1.2(b). To receive this reduction the
defendant’s role in the criminal conduct must be more than minimal but the
defendant must be less culpable than most other participants. Id. § 3B1.2 cmt. n.5.
The defendant has the burden of proving eligibility for such a reduction by a
preponderance of evidence. See United States v. Virgen-Chavarin, 350 F.3d 1122,
1131 (10th Cir. 2003). A defendant’s assertion that he played a minor role is not
enough to overcome a district court’s contrary finding under a clearly erroneous
standard. See id.Mr. Siyam’s participation was not so minor as to make the district court’s
finding clearly erroneous. Mr. Siyam argues he is similar to a commercial bus driver
who unknowingly transports a drug courier. However, the evidence supports the
conclusion that Mr. Siyam was more involved than a commercial bus driver. Even
though Mr. Siyam claimed not to know of the marijuana, the jury necessarily found
to the contrary by adjudging him guilty. At best, we could consider Mr. Siyam a
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courier. We have refused to adopt a per se rule that couriers are minor participants.
United States v. Ballard, 16 F.3d 1110, 1115 (10th Cir. 1994). And, even under that
characterization of his role, Mr. Siyam has failed to carry his evidentiary burden of
establishing that he is the kind of courier that should be deemed a minor participant.
Mr. Siyam coordinated his trip with Luis and was in contact with Luis about his
progress. He also lied to the police to prevent discovery of the marijuana. The
district court’s conclusion that he is not entitled to this reduction was properly
supported by the record.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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