United States v. Sanchez-Chaparro , 392 F. App'x 639 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
August 19, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-8012
(D.C. No. 2:08-CR-00019-ABJ-2)
PAULINO SANCHEZ-CHAPARRO, (D. Wyo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HOLMES, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.
Paulino Sanchez-Chaparro appeals his drug-trafficking conviction and
sentence. We have jurisdiction under 28 U.S.C. § 1291. Because the district
court did not err in refusing to suppress evidence seized from a vehicle defendant
was driving, in refusing to suppress his incriminating statements, in concluding
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
that there was sufficient evidence to convict him of conspiracy to distribute
cocaine and methamphetamine, or in sentencing him, we AFFIRM.
I. BACKGROUND
Defendant lived near his brother, Leonardo Sanchez, in Cheyenne,
Wyoming. Leonardo’s girlfriend was Rocio Orozco. On November 20, 2007,
Orozco complained to police that Leonardo had assaulted her. She also informed
them that Leonardo and defendant were involved in selling cocaine and
methamphetamine. That evening, officers conducted surveillance on Leonardo’s
apartment and attempted to corroborate the drug-trafficking information. Among
other information, Orozco had told them that defendant drove Leonardo to
conduct drug business in various vehicles, including a gold Impala. While the
officers were watching the apartment, a Hispanic male arrived in a gold Impala.
The unidentified man (who turned out to be defendant) and Leonardo visited a
Wal-Mart. After returning Leonardo to his apartment, the gold Impala drove to
the area of a trailer park where defendant lived. Checking the records on the
Impala, officers found it was registered to defendant’s wife.
Ultimately, officers obtained a search warrant for the apartment. When
they executed the warrant early in the morning on November 21, they seized
226.3 grams of cocaine, scales, ledgers, packaging material, and other drug
paraphernalia, as well as two pistols and an assault rifle.
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After the search of Leonardo’s apartment, Lieutenant Robert Korber of the
Cheyenne Police Department went to defendant’s home to set up surveillance.
The gold Impala was there, with some snow covering it. There also was a Ford
Ranger pick-up truck, which Korber had seen parked there when he drove past the
trailer the previous night, and an Escalade. Because the vehicles were there,
Korber believed defendant was in the trailer. He began surveillance, though it
was complicated by the distance he had to maintain to remain undetected. After
he erroneously stopped a vehicle whose occupants turned out to be defendant’s
neighbors, he requested assistance. Detectives Thomas Garrison and Thomas
Hood responded.
Garrison and Hood were able to position themselves in two locations with
direct lines of sight to the trailer’s door. People came and went from the trailer;
the detectives’ instructions were to stop vehicles containing persons who left the
trailer but who had not been observed entering it. After about 60 to 90 minutes of
surveillance, both Garrison and Hood saw two previously unseen Hispanic males
leave the trailer. Hood advised Korber that he saw the men drive away in the
Ranger. Garrison followed the Ranger, and Korber directed Garrison to stop it
and identify the occupants. Garrison complied, determining that defendant was
the driver, and a man identified as Pelón was the passenger. The conversation
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was in English. 1 Korber directed Garrison to transport defendant and Pelón to the
police station for questioning. Defendant consented to being taken to the station.
Police later searched the Ranger, seizing cell phones containing incriminating
evidence.
At the station, reading from a waiver form written in English, Korber
informed defendant of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436
(1966). Korber believed that defendant understood his rights, as defendant
responded to him in English. When Korber felt that there might be some
confusion, Michael Nallin of the Bureau of Alcohol, Tobacco, and Firearms, who
speaks rudimentary Spanish, asked defendant in Spanish if he understood.
Defendant said he understood and signed the waiver form. Initially the interview
was in English, but at some point, Korber and Nallin requested translation by a
Spanish-speaking officer. That officer translated the latter part of the interview.
Defendant made incriminating admissions during the interview.
Defendant moved to suppress his statements, contending that his waiver of
his Miranda rights was not knowing and voluntary because he did not understand
enough English to comprehend the warnings. Defendant also moved to suppress
the cell phones seized from the Ranger on the ground that the stop violated Terry
v. Ohio, 392 U.S. 1 (1968). The district court denied both motions.
1
A recording of part of the traffic stop is in the record on appeal.
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Ultimately, defendant pleaded guilty to illegally entering the United States
(count 8). The jury found him guilty of conspiracy to possess with intent to
distribute, and to distribute cocaine and methamphetamine (count 1), possession
with intent to distribute cocaine and aiding and abetting (count 2), and being an
illegal alien in possession of a firearm (count 4). The jury also found that counts
1 and 2 involved 226.3 grams of cocaine and 680.4 grams of methamphetamine.
At sentencing, the district court increased defendant’s base offense level by four
levels under Sentencing Guideline § 3B1.1(a) (leader/organizer enhancement) and
by two levels under Sentencing Guideline § 3C1.1 (obstruction-of-justice
enhancement), resulting in an advisory Guidelines range of 324 to 405 months.
The district court then reviewed other recent Wyoming drug-distribution cases
and concluded that 240 months was the most appropriate sentence. Accordingly,
it varied downward by three levels so that the advisory Guidelines range would
encompass 240 months. It then sentenced defendant to two concurrent terms of
240 months’ imprisonment on counts 1 and 2, with lesser concurrent sentences for
counts 4 and 8. Defendant appeals.
II. ANALYSIS
Defendant raises five arguments. The first two concern the district court’s
denial of his motions to suppress evidence, the third concerns the sufficiency of
evidence of conspiracy to distribute methamphetamine, and the fourth and fifth
arise from the calculation of his sentence.
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A. Suppression of Evidence
1. Evidence from the Ranger
The district court refused to suppress the evidence recovered from the Ford
Ranger, holding that the officers had reasonable suspicion that defendant was one
of the occupants of the truck and probable cause to arrest him. Defendant
contends that the district court erred because the officer stopped the truck “not on
a particularized and objective basis,” but instead on a “mere hunch.” Aplt. Br. at
10 (quotation omitted). 2
“In assessing a denial of a motion to suppress, this court accepts the factual
findings of the district court, and its determination of witness credibility, unless
they are clearly erroneous.” United States v. Chavez, 534 F.3d 1338, 1343
(10th Cir. 2008) (alteration and quotation omitted). “Ultimately, however, this
court must review de novo the reasonableness of the government’s action under
the Fourth Amendment.” Id. It is the government’s burden to prove
reasonableness, but we view the evidence in the light most favorable to the
government. See id.
“[T]he principles set forth in Terry v. Ohio . . . guide this court’s analysis
of the reasonableness of the traffic stop. Thus, we examine whether the traffic
stop was (1) justified at its inception and (2) reasonably related in scope to the
2
In his reply brief, defendant clarifies that he challenges only the traffic
stop, not his arrest.
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circumstances which justified the interference in the first place.” Id. (citation
omitted). Defendant challenges only the first of these factors. To justify “the
particular intrusion the police officer must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion.” Terry, 392 U.S. at 21. But a police officer
may not rely on “his inchoate and unparticularized suspicion or hunch.” Id. at 27.
“The conduct of the officers is judged by an objective standard taking the totality
of the circumstances and information available to the officers into account.”
United States v. Lang, 81 F.3d 955, 965 (10th Cir. 1996).
The stop of the Ranger was justified at its inception because the police had
probable cause to arrest defendant and a reasonable suspicion that he was an
occupant of the truck. Orozco had reported that defendant and Leonardo were
involved with drug-trafficking, and officers had corroborated much of Orozco’s
information (including the seizure of more than 200 grams of cocaine from
Leonardo’s apartment). They knew defendant’s gender, ethnicity, and address.
Orozco had stated that defendant drove Leonardo in a gold Impala, and the night
of November 20, they had followed a Hispanic male driving a gold Impala (which
was registered to defendant’s wife) from Leonardo’s apartment to the Wal-Mart
and back, and then to the area of the trailer park where defendant lived.
The next morning, the Impala and two other vehicles (including the Ford
Ranger that Korber had seen there the previous night) were at the trailer. This
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information allowed the officers to form a reasonable belief that defendant was in
the trailer. Further, in contrast to the several persons who visited for short
periods of time (and who were not stopped), defendant and Pelón had not been
seen entering the trailer during the surveillance. Defendant’s reliance on the stop
of his neighbors to show that the officers’ surveillance was unfocused and inexact
is unpersuasive. Korber testified at the suppression hearing that he could not get
too close to the trailer, and he only saw the vehicle that he initially stopped as it
left the trailer park. But after the erroneous stop, he asked for additional officers
to assist. Both Hood and Garrison actually saw defendant and Pelón leave the
trailer, and Hood saw them drive away in the Ranger.
Under the totality of the circumstances, there was sufficient justification for
Garrison, acting under Korber’s instructions, to stop the Ranger. See id. at
965-66 (upholding stop of vehicle where officers reasonably suspected person of
criminal activity and believed he was in the vehicle); see also Chavez, 534 F.3d at
1344-48 (holding that officer was objectively justified in making traffic stop
where he acted on the strength of other officers’ information of drug-trafficking
by passenger). In short, the district court did not err in denying the motion to
suppress the evidence from the Ranger.
2. Incriminating Admissions
The district court concluded that defendant understood enough English to
make a knowing and voluntary waiver of his Miranda rights. Defendant contends
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that the court erred in evaluating his ability to understand English and, therefore,
that the waiver was not knowing and intelligent. “The validity of a defendant’s
waiver of his or her Fifth Amendment rights is reviewed de novo with the
underlying facts reviewed under the clearly erroneous standard.” United States v.
Morris, 287 F.3d 985, 988 (10th Cir. 2002).
A waiver of Miranda rights must be made “voluntarily, knowingly, and
intelligently.” Miranda, 384 U.S. at 444. “‘[T]he relinquishment of the right
must have been voluntary in the sense that it was the product of a free and
deliberate choice rather than intimidation, coercion, or deception.” Moran v.
Burbine, 475 U.S. 412, 421 (1986). And “the waiver must have been made with a
full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.” Id. Defendant does not challenge
voluntariness, instead focusing on the court’s finding regarding his English
proficiency and the conclusion that the waiver was knowing and intelligent.
“Whether [defendant] understood his Miranda rights is a question of fact, which
underlies the legal question of whether his waiver was knowing and intelligent.”
Valdez v. Ward, 219 F.3d 1222, 1231 (10th Cir. 2000) (citations omitted).
Having independently reviewed the record, including the recording of the
traffic stop, we cannot conclude that the district court clearly erred in finding that
defendant understood sufficient English to understand the Miranda warnings.
Defendant generally responded appropriately to Garrison’s questioning during the
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traffic stop. He asked Garrison if there would be a Spanish-speaker at the station,
and was told that there would, but he never asked for a translator when he was at
the station. When it appeared that defendant might be having some difficulty
understanding the warnings given at the station, Nallin asked him in Spanish if he
understood, and he responded that he did. Further, defendant conversed with
officers in English during a search of his trailer. These facts support the district
court’s finding. See id. (defendant appropriately responded to questioning);
United States v. Lugo, 170 F.3d 996, 1004 (10th Cir. 1999) (“Although it would
have been preferable to give [defendant] a Miranda warning in Spanish, the
record indicates that [defendant] indicated to [the officer] that he understood
those rights as they were being read to him in English, and responded to all
questions in English.”); United States v. Toro-Pelaez, 107 F.3d 819, 826
(10th Cir. 1997) (defendant spoke to troopers in English). Accordingly, the
district court did not err in concluding that defendant’s waiver of his Miranda
rights was knowing and intelligent.
B. Sufficiency of the Evidence
Count 1 of the indictment charged defendant with conspiracy to possess
with intent to distribute, and to distribute, methamphetamine and cocaine. In
finding defendant guilty on this count, the jury also found that the offense
involved 680.4 grams of methamphetamine. The court calculated defendant’s
sentence based on that finding. Defendant concedes that there was sufficient
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evidence of his involvement in a conspiracy to distribute cocaine. He argues,
however, that (1) there was insufficient evidence to conclude that he conspired to
distribute methamphetamine, and (2) there was insufficient evidence to support
the jury’s precise finding of 680.4 grams of methamphetamine. The standard of
review is de novo, with the evidence viewed in the light most favorable to the
government. United States v. Curtis, 344 F.3d 1057, 1069-70 (10th Cir. 2003).
“Furthermore, our review is deferential to the jury’s fact-finding, and we must
sustain [defendant’s] conviction if any rational juror could have found him
guilty.” United States v. Cardinas Garcia, 596 F.3d 788, 794 (10th Cir.), cert.
denied, 130 S. Ct. 3299 (2010).
“In order to obtain a conspiracy conviction the government must show
[1] that two or more persons agreed to violate the law, [2] that the Defendant
knew at least the essential objectives of the conspiracy, [3] that the Defendant
knowingly and voluntarily became a part of it, and [4] that the alleged
coconspirators were interdependent.” United States v. Flores, 149 F.3d 1272,
1277 (10th Cir. 1998) (alteration and quotation omitted). The record contains
evidence of defendant’s involvement in a conspiracy involving methamphetamine
as well as cocaine.
An officer testified that defendant told police that he knew Leonardo was
involved with drugs. Defendant admitted at trial that he helped Leonardo get
certain cell phones, which the evidence showed were used in connection with
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selling methamphetamine and cocaine. Defendant, Leonardo, and Pelón together
rented Leonardo’s apartment, from which Leonardo sold both cocaine and
methamphetamine. Leonardo and defendant did all the talking with the landlord,
but put the rental under Pelón’s name. Defendant paid the deposit on the
apartment—$800 in cash out of the $1,200 he had in his pocket.
Orozco testified that the methamphetamine business was Leonardo’s, while
the cocaine business was defendant’s, but she also testified that defendant visited
the apartment almost every day and that he would drive Leonardo around town.
She stated that Leonardo acknowledged owing defendant money, even though
Leonardo never handled any money for the cocaine transactions. She never saw
Leonardo give defendant money—but Leonardo would have a large amount of
cash from methamphetamine sales, then defendant would visit the apartment, and
after the visit, Leonardo would have no cash. Another conspirator, Jordan Ivey,
testified that she was giving Leonardo $1,000 a day for methamphetamine, but
Leonardo never had any large amounts of money.
Finally, on November 20, 2007, the police trailed defendant’s gold Impala
from Leonardo’s apartment to a Wal-Mart store. Another witness (the sister of a
conspirator) described how her sister asked her to meet the Sanchez brothers that
night at the Wal-Mart. The sister and an ex-boyfriend asked the witness to sign
for a $1,100 money order at the Wal-Mart and give the brothers the money. Ivey
confirmed that the money order represented proceeds from methamphetamine
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sales. Viewing all of this evidence in the light most favorable to the government,
as we must, we conclude that the evidence was sufficient to support the
conviction on Count 1.
We also conclude that there was sufficient evidence for the jury to assess
the amount of methamphetamine at 680.4 grams. Contrary to defendant’s
argument, the number was not simply “made up,” Aplt. Br. at 26. At 16 ounces
per pound, and 28.35 grams to the ounce (rounded up slightly from the most
precise figure, which stretches several places to the right of the decimal), 680.4
grams is one and one-half pounds of methamphetamine. Orozco testified that she
accompanied Leonardo to purchase methamphetamine on two occasions. She
estimated the amount of methamphetamine she transported for him on the first
occasion to be about a half-pound, and she estimated that he had twice that
amount on the second occasion. Although defendant argues that her estimates
were vague, it was the jury’s job to weigh her credibility and determine whether
they believed her. See Cardinas Garcia, 596 F.3d at 794 (“We accept at face
value the jury’s credibility determinations and its balancing of conflicting
evidence.”).
C. Sentencing Issues
1. Leader/Organizer Enhancement
Defendant opposes the court’s addition of four levels under Sentencing
Guideline § 3B1.1(a), the enhancement for being a “leader or organizer of a
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criminal activity that involved five or more participants or was otherwise
extensive.” He contends that the district court did not identify five persons who
could properly be counted as “participants.” He concedes that he failed to present
this argument to the district court, instead opposing the § 3B1.1(a) enhancement
on a different ground. Thus, our review is only for plain error. See United States
v. Simpson, 152 F.3d 1241, 1250 (10th Cir. 1998) (stating that an objection on
different grounds in the district court results in plain-error review). “Plain error
occurs when there is (1) error, (2) that is plain, which (3) affects substantial
rights, and which (4) seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” United States v. Hinson, 585 F.3d 1328, 1333 (10th Cir.
2009), cert. denied, 130 S. Ct. 1910 (2010) (quotation omitted).
The Sentencing Commission has defined “participant” as “a person who is
criminally responsible for the commission of the offense, but need not have been
convicted.” USSG § 3B1.1, comment. (n.1). As defendant concedes, he counts as
a participant. See United States v. Reid, 911 F.2d 1456, 1464 (10th Cir. 1990),
abrogation on other grounds recognized by United States v. Cruz Camacho,
137 F.3d 1220, 1224 n.3 (10th Cir. 1998). The district court identified five
persons besides defendant as potential “participants.” Defendant does not object
to counting three of them (Leonardo, Ivey, and Miston Compton). Including
defendant, then, there are four undisputed “participants.” But he complains that
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the remaining two persons (Andy Speck and Howard Knauer) were, at most,
customers of the drug ring and thus not properly counted.
In light of the testimony that Speck distributed cocaine to others, it is not
clear that Speck was a mere buyer, as defendant suggests. But even if counting
Speck could be considered an error, defendant has not shown that his substantial
rights were affected or that any error seriously affects the fairness of the
proceeding. The evidence at trial implicated others in the drug-distribution
scheme, including Pelón and Orozco. Thus, even not counting Speck, there were
sufficient “participants” to allow the § 3B1.1(a) enhancement, and no plain error.
See United States v. Uscanga-Mora, 562 F.3d 1289, 1295 (10th Cir.) (holding that
where “the district court’s sentencing decision was amply supported by [the]
evidence” and “[t]he defendant thus received a sentence merited by the evidence,”
the defendant could not show the error affected his substantial rights), cert.
denied, 130 S. Ct. 289 (2009).
2. Obstruction-of-Justice Enhancement
After finding that defendant perjured himself in testifying at trial, the
district court added two levels for obstruction of justice under Guideline § 3C1.1.
See USSG § 3C1.1, comment. (n.4(b)) (stating that committing perjury is within
the conduct addressed by § 3C1.1). Defendant argues that the district court failed
to make the findings required to support the perjury determination. This issue
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also is reviewed for plain error, since he did not raise any objection at sentencing.
See Uscanga-Mora, 562 F.3d at 1293.
A sentencing enhancement for perjury is appropriate only when a defendant
“gives false testimony concerning a material matter with the willful intent to
provide false testimony, rather than as a result of confusion, mistake, or faulty
memory.” United States v. Dunnigan, 507 U.S. 87, 94 (1993). Accordingly, “if a
defendant objects to a sentence enhancement resulting from her trial testimony, a
district court must review the evidence and make independent findings necessary
to establish a willful impediment to or obstruction of justice, or an attempt to do
the same, under the perjury definition.” Id. at 95. This court “require[s] that a
district court be explicit about which representations by the defendant constitute
perjury. . . . [I]t has long been a requirement in the Tenth Circuit that the
perjurious statement be identified, at least in substance.” United States v.
Hawthorne, 316 F.3d 1140, 1146 (10th Cir. 2003) (quotation and citation
omitted).
The district court’s § 3C1.1 findings stated:
Defendant denied any connection with this conspiracy; it was
all an unfortunate mistake perpetrated upon a hardworking individual
by his dissolute brother and a group of police officers who had
decided to violate their oath and their careers in favor of bringing to
this court a pack of lies. Frankly an incredible position for him to
take . . . . Clearly, this defendant was an able, not drug addicted, not
scattered, focused person engaged in the business of distribution of
these substances.
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Amended Record on Appeal, Vol. 3 (Sentencing Transcript) at 328-29.
This court has held that
[t]he district court may generally identify the testimony at issue from
his or her trial notes or memory and it is sufficient if such testimony
is merely described in substance so that when we review the
transcript we can evaluate the Dunnigan findings of the elements of
perjury against an identified line of questions and answers without
having simply to speculate on what the district court might have
believed was the perjurious testimony.
United States v. Massey, 48 F.3d 1560, 1574 (10th Cir. 1995). The district
court’s finding on the point may not be ideal, but it satisfies this standard. The
court’s general descriptions correlate to particular parts of the transcript of
defendant’s testimony that are identifiable on review. There was no plain error in
assessing the two-point enhancement for perjury.
III. CONCLUSION
The judgment of the district court is AFFIRMED.
Entered for the Court
David M. Ebel
Circuit Judge
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