United States v. Juarez , 607 F. App'x 779 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
April 15, 2015
FOR THE TENTH CIRCUIT
_________________________________ Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v. No. 13-6235
(D.C. No. 5:12-CR-00297-R-1)
PEDRO JUAREZ, (W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, Chief Judge, TYMKOVICH and MORITZ, Circuit Judges.
_________________________________
Pedro Juarez appeals his convictions for one count of conspiracy to distribute
methamphetamine and to possess methamphetamine with intent to distribute in violation
of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1); seven counts of use of a communication
facility in furtherance of the conspiracy in violation of 21 U.S.C. § 843(b); and six counts
of possession of methamphetamine with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1).
Juarez contends the district court erred in admitting statements of his alleged co-
conspirators absent independent evidence he conspired with them to distribute
*
This order and judgment is not binding precedent, except under the doctrines of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.
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methamphetamine. But we decline to address the admissibility of these statements
because Juarez fails to specifically challenge any particular statement. Further, Juarez
challenges the sufficiency of the evidence supporting all 14 of his convictions. Because
we conclude sufficient evidence supports each of Juarez’s convictions, we affirm.
BACKGROUND
Over the course of law enforcement’s year-long investigation into Iran Zamarripa,
the regional supervisor of an international methamphetamine organization, Pedro Juarez
purchased thousands of dollars’ worth of methamphetamine from Zamarippa. According
to Special Agent Casey Cox, Juarez regularly procured one-half ounce to two ounces of
methamphetamine several times a week, often on credit. Both Cox and Zamarripa
characterized Juarez’s purchases as inconsistent with personal use. On one occasion,
Juarez asked Zamarripa to cut him a deal on the price of two ounces of methamphetamine
so Juarez could make extra profit when he resold it. And despite Juarez’s modest
wages—he made $15 per hour as a construction worker—Juarez managed to make timely
payments for his purchases.
Based on this evidence, the jury convicted Juarez of one count of conspiracy to
distribute methamphetamine and to possess methamphetamine with intent to distribute;
seven counts of use of a communication facility; and six counts of possession of
methamphetamine with intent to distribute. The district court sentenced Juarez to 144
months in prison, and Juarez appealed.
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DISCUSSION
I. Juarez forfeited his hearsay argument.
Juarez first argues the district court erred in admitting the statements of his alleged
co-conspirators absent independent evidence he conspired with them to distribute
methamphetamine. Juarez characterizes these statements as hearsay.
Because Juarez fails to identify any specific co-conspirator statements on appeal,
we decline to reach the issue. See United States v. Thornburgh, 645 F.3d 1197, 1210
(10th Cir. 2011) (refusing to address appellant’s challenge to admission of co-conspirator
statements because appellant neglected to identify any specific statements on appeal;
failure to identify specific statements prevented court from determining whether
statements were offered for truth of matters asserted); see also United States v. Lewis,
594 F.3d 1270, 1285 (10th Cir. 2010) (declining to examine each record page cited in
appellant’s brief to determine whether any co-conspirator statements contained therein
were hearsay and, if so, whether their admission prejudiced appellant).
II. The government presented sufficient evidence to support Juarez’s
convictions.
Next, Juarez challenges the sufficiency of the evidence to sustain all 14 of his
convictions. Because Juarez failed to renew his Rule 29 motion for judgment of acquittal
after presenting evidence on his own behalf, we review for plain error. See United States
v. Rufai, 732 F.3d 1175, 1189 (10th Cir. 2013) (discussing effect of failure to renew
Rule 29 motion at close of evidence).
Absent sufficient evidence to support it, however, a conviction will almost always
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satisfy all four plain-error requirements. Thus, reviewing for plain error in this context
differs little from our de novo review of a properly preserved sufficiency claim. See id.(quoting United States v. Duran, 133 F.3d 1324, 1335 n.9 (10th Cir. 1998)) (concluding
plain error review and review for sufficient evidence “‘usually amount to largely the
same exercise’”). Under our sufficiency-of-the-evidence test, we view the evidence in the
light most favorable to the government and ask whether the evidence—and any
reasonable inferences to be drawn from it—would allow a reasonable jury to find the
defendant guilty beyond a reasonable doubt. United States v. Green, 435 F.3d 1265, 1272
(10th Cir. 2006).
A. Possession of methamphetamine with intent to distribute
Although Juarez concedes he repeatedly purchased and possessed
methamphetamine, he challenges his six convictions for possession of methamphetamine
with intent to distribute, contending the government failed to present sufficient evidence
of his intent to distribute. According to Juarez, the evidence established only that he
purchased methamphetamine for personal use.
But the government points to evidence that is more than sufficient to support
Juarez’s intent to distribute. For instance, Cox characterized the amount of
methamphetamine Juarez purchased from Zamarripa—often on credit—as inconsistent
with personal use, and Zamarripa testified it would have been impossible for Juarez to
personally use all the methamphetamine he purchased. See United States v. Small, 423
F.3d 1164, 1184 (10th Cir. 2005) (explaining existence of fronting arrangement strongly
suggests that individual who receives drugs on credit will redistribute them for profit);
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United States v. Pulido-Jacobo, 377 F.3d 1124, 1131 (10th Cir. 2004) (stating jury may
infer intent to distribute from possession of large quantities of drugs). Moreover, a
reasonable jury could have inferred Juarez was reselling the methamphetamine because
his $15-an-hour wages were insufficient to cover his frequent purchases, which
sometimes exceeded $1,000. Finally, Zamarripa testified Juarez once haggled with him
over the price of two ounces of methamphetamine because Juarez wanted to increase his
profit from its imminent resale. We conclude this evidence, when viewed in the light
most favorable to the government, was sufficient to allow a reasonable jury to convict
Juarez of possessing methamphetamine with intent to distribute.
B. Conspiracy to possess methamphetamine with intent to distribute
To convict Juarez of conspiracy, the government was required to prove he
(1) agreed with at least one other person to violate the law; (2) knew of the conspiracy’s
objectives; and (3) knowingly and voluntarily involved himself in the conspiracy.
Further, the government was required to demonstrate (4) interdependence between the
co-conspirators. See United States v. Foy, 641 F.3d 455, 465 (10th Cir. 2011).
We have long recognized “that proof of the existence of a buyer-seller
relationship, without more, is inadequate to tie the buyer to a larger conspiracy.” United
States v. Watson, 594 F.2d 1330, 1337 (10th Cir. 1979); see also United States v.
Patterson, 713 F.3d 1237, 1245-46 (10th Cir. 2013) (stating one who merely purchases
drugs from member of conspiracy does not automatically become part of conspiracy).
Citing this “buyer-seller rule,” Juarez insists the government failed to present sufficient
evidence to support his conspiracy conviction because it proved only that he purchased
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methamphetamine from Zamarripa for personal use. See United States v. Ivy, 83 F.3d
1266, 1285-86 (10th Cir. 1996) (explaining purpose of buyer-seller rule is to “separate
consumers, who do not plan to redistribute drugs for profit, from street-level, mid-level,
and other distributors, who do intend to redistribute drugs for profit, thereby furthering
the objective of the conspiracy”).
But when viewed in the light most favorable to the government, the evidence we
discussed above was sufficient to prove Juarez was more than a mere purchaser of
methamphetamine. Given all the evidence indicating Juarez intended to redistribute the
methamphetamine he purchased, the buyer-seller rule does not apply. See United States v.
Bell, 154 F.3d 1205, 1208 (10th Cir. 1998) (finding evidence of fronting arrangement
inconsistent with mere buyer-seller relationship); United States v. Howard, 966 F.2d
1362, 1364-65 (10th Cir. 1992) (reasoning disparity between defendant’s limited
financial resources and value of crack cocaine he possessed suggested defendant was not
mere purchaser, but instead was involved in common plan with another to distribute
crack cocaine).
Moreover, this evidence was sufficient to prove all four elements of the conspiracy
charge. See Small, 423 F.3d at 1183, 1185 (noting multiple purchases for resale permit
inference buyer was aware of and “shared common goals with” conspiracy, and
reasoning fronting arrangement creates situation of mutual dependence because seller’s
ability to front drugs depends on receipt of money due); United States v. Nichols, 374
F.3d 959, 961, 969 (10th Cir. 2004), cert. granted, judgment vacated, 543 U.S. 1113,
opinion reinstated, 410 F.3d 1186 (10th Cir. 2005) (hypothesizing that evidence of
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fronting arrangement would have allowed reasonable jury to find existence of agreement
to distribute between defendant and supplier); United States v. Bell, 154 F.3d 1205, 1208
(10th Cir. 1998) (stating jury may presume defendant who acts in furtherance of
conspiracy’s goal is knowing participant).
Because we conclude the government presented ample evidence establishing
Juarez was not a mere purchaser of methamphetamine, but rather a knowing, voluntary,
and integral part of a conspiracy to distribute that drug, we affirm his conspiracy
conviction.
C. Use of a communication facility to facilitate a drug felony
Finally, Juarez challenges the sufficiency of the evidence supporting his seven
convictions for use of a communication facility. But he does not dispute that he
repeatedly ordered methamphetamine by phone. Rather, he premises his challenge solely
on the alleged lack of evidence establishing his intent to distribute. Because we have
already concluded the government presented sufficient evidence to allow a reasonable
jury to conclude Juarez possessed methamphetamine with intent to distribute—and
indeed conspired to do so—we likewise find the evidence sufficient to support his
convictions for use of a communication facility to facilitate those crimes.
CONCLUSION
Juarez’s multiple sufficiency challenges all hinge on his assertion he purchased
methamphetamine only for personal use. Viewing the evidence in the light most
favorable to the government, a reasonable jury could conclude he purchased
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methamphetamine intending to distribute it as part of a conspiracy. Because sufficient
evidence supports Juarez’s convictions, we affirm.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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