United States v. Walter Escobar , 909 F.3d 228 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-1014
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Walter Ronaldo Martinez Escobar
lllllllllllllllllllllDefendant - Appellant
___________________________
No. 17-1018
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jose Manuel Rojas-Andrade
lllllllllllllllllllllDefendant - Appellant
___________________________
No. 17-1059
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jason Allen Jackson
lllllllllllllllllllllDefendant - Appellant
___________________________
No. 17-1170
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Trinidad Jesus Garcia
lllllllllllllllllllllDefendant - Appellant
___________________________
No. 17-1172
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Catarino Cruz, Jr.
lllllllllllllllllllllDefendant - Appellant
____________
Appeals from United States District Court
for the District of Minnesota - St. Paul
____________
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Submitted: February 14, 2018
Filed: November 26, 2018
____________
Before SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.*
____________
SMITH, Chief Judge.
A jury convicted Walter Ronaldo Martinez Escobar, Jason Allen Jackson, and
Catarino Cruz, Jr., of federal crimes related to a methamphetamine distribution
operation. Jose Rojas-Andrade and Trinidad Garcia pleaded guilty to counts related
to the same operation. The district court1 imposed sentences of 137 months to 330
months. These five appellants appeal a variety of issues related to their convictions
and sentences. We affirm.
I. Background
A. Underlying Facts
Following a lengthy investigation, 13 people—including the five
appellants—were indicted in a large drug-trafficking conspiracy. The investigation
focused on Jesse Garcia (“Jesse”), a multi-pound methamphetamine distributor.
In June 2015, the Drug Enforcement Administration (DEA) became involved
in the Dakota County Drug Task Force and St. Paul Narcotics Unit’s ongoing
investigation of Jesse. The DEA learned that these local law enforcement agencies had
conducted surveillance at Jesse’s residence on approximately May 25, 2015, and
*
Chief Judge Smith and Judge Colloton file this opinion pursuant to 8th Cir.
Rule 47E.
1
The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
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stopped a vehicle believed to have recently left a residence associated with Jesse.
Rojas-Andrade and Juan Noyola-Garcia (“Noyola”) were in the vehicle. Law
enforcement searched the vehicle and recovered $45,000 from under the passenger
seat.
On June 16, 2015, law enforcement responded to a call from the Northwood Inn
and Suits in Bloomington, Minnesota, relating to a customer’s claim of theft. Trinidad
Garcia (“Garcia”), Jesse’s brother, was a maintenance worker there. A witness
identified Garcia as the suspect. Law enforcement arrested Garcia for an active
warrant on an unrelated matter. During the booking process at the jail, law
enforcement recovered 39.34 grams of methamphetamine (36.58 actual grams of
methamphetamine) from Garcia’s underwear. Garcia possessed the methamphetamine
with the intent to distribute it to others. Authorities connected Garcia’s drugs to Jesse
as the supplier.
During the early stages of the investigation, law enforcement placed GPS
trackers on several vehicles that Jesse used. These GPS trackers enabled law
enforcement to identify a house in rural Wisconsin (“Wisconsin stash house”) as a
location that Jesse and other coconspirators frequented. Law enforcement installed a
pole camera. It was determined that Jesse’s supply came from the Wisconsin stash
house operated by a Rojas-Andrade, Noyola, and a third coconspirator. These
individuals worked for a Mexican man and his girlfriend, Guadalupe Garibay
Sanchez, to supply Jesse and others with methamphetamine. They used the Wisconsin
stash house to store drugs and money. Rojas-Andrade recruited Noyola and Escobar
to assist him with the methamphetamine operation.
Law enforcement discovered that Jesse changed his phone about every 30 days.
Law enforcement attempted to obtain wiretaps on four of Jesse’s phones but were able
to intercept only two of the phones—“TT2” and “TT4.” The interception of TT2
lasted only three days—July 17 to July 19, 2015. During those days, law enforcement
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intercepted calls between Jesse and two of his distributors, including David Bennett.
The interception of TT4 lasted about one week—August 12 to August 19, 2015. The
intercept enabled the seizure of 50 pounds of methamphetamine from Jesse and a
seizure of another 30 pounds from the Wisconsin stash house, which ended the
investigation.
After interceptions of TT4 began, on August 12, 2015, law enforcement
intercepted a call between Jesse and Cruz, who was one of Jesse’s sources of
methamphetamine. In the call, Cruz explained that he was “checking” on Jesse.
Appellee’s App. at A-79 (Ex. 18). Jesse updated Cruz on the status of his drug
trafficking, telling Cruz that it was “kind of slower right now ‘cause ah, we lost some
people and shit, so it’s kind of slowed down a little bit.” Id. Jesse’s description of
having “lost some people” referred to arrests earlier that summer of two of Jesse’s
distributors, John Schatz and William Chevre. Cruz replied, “That’s fine. I was just
checking in with you.” Id. at A-80 (Ex. 18).2 Based on this call, law enforcement
believed that Cruz was a methamphetamine source for Jesse, and Jesse was informing
Cruz that Jesse was not ready for any additional methamphetamine at that time.
Additionally, surveillance and tracking devices on Jesse’s vehicle confirmed that Jesse
traveled to Cruz’s residence on May 5 and June 11, 2015.
On August 13, 2015, law enforcement intercepted multiple calls between Jesse
and Jackson, a methamphetamine distributor. During their conversations, Jesse and
Jackson discussed Jesse’s recent financial losses and Jackson’s repayment of his debt
to Jesse. Jesse told Jackson he had to “go switch up cars,” id. at A-87 (Ex. 26), and
“grab them things,” id. at A-86 (Ex. 26), before meeting with Jackson. This meant that
Jesse was going to get a car (a Kia) that he often used when he had methamphetamine
2
At the end of this quotation appears an unintelligible statement that the
transcript refers to as “[U/I].” Id.; see also United States v. Dale, 614 F.3d 942, 952
(8th Cir. 2010) (explaining “[UI]” means “unintelligible statement”). For readability,
we have omitted “[U/I]” from any quotations to the record.
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with him and get the methamphetamine before meeting Jackson. Jackson confirmed
that he had all the “paper” (money) “[t]owards the whole . . . debt.” Id. at A-88 (Ex.
26). They agreed to meet that day at a restaurant. Jesse arrived in the Kia, and Jackson
arrived in another vehicle. Both vehicles thereafter left the restaurant’s parking lot,
with Jackson returning to his residence. He was observed exiting his vehicle with
bags. Right after meeting with Jackson, Jesse contacted Cruz, stating, “I probably
need to see you like tomorrow or the next day.” Id. at A-90 (Ex. 30). Cruz responded,
“Are they paying or what?” Id. Jesse then explained that none of them were getting
paid yet and that he would only need “half of that maybe.” Id.
On August 14, 2015, Bennett called Jesse about meeting to complete a drug
transaction. Jesse asked Bennett if Bennett wanted “[j]ust the one.” Id. at A-93 (Ex.
33). Jesse explained that he only had “three of ‘em left” and that he was “just buying
cash right now.” Id. Jesse had “lost so much money [that he was] pretty much down
to . . . just grabbing.” Id. (ellipsis in original). Bennett told Jesse to “bring two, just
in case,” and Jesse asked that Bennet “let [him] know for sure if [Bennett] need[ed]
two of them. Id. Later, Jesse and Bennett completed the drug transaction in a
residential neighborhood.
Jesse and Bennett met again on August 15, 2015, and conducted another drug
transaction in the neighborhood. Prior to their meeting, Jesse traveled to a residence
on Case Avenue, entered the residence for approximately five minutes, and exited the
residence with something in his hand. Jesse then drove to meet Bennett. Following
their meeting, Bennett was pulled over by the Minnesota State Patrol. Law
enforcement recovered over a pound of methamphetamine and two stolen handguns
from his vehicle.
After meeting with Bennett, Jesse called Cruz, telling him that he had “picked
up some {cash}” and Cruz should “come grab it tomorrow.” Id. at A-99 (Ex. 48)
(alteration in original). They spoke before 6 p.m. on August 16, 2015, and agreed to
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meet at Jesse’s residence in Coon Rapids, Minnesota. At 6:00 p.m. on August 16,
2015, law enforcement intercepted a call between Cruz and Jesse in which Cruz
informed Jesse that he was outside. At the same time, a minivan arrived at Jesse’s
residence. Cruz’s stepdaughter, Sanchez, was the driver, and Cruz was the passenger.
Within an hour of the meeting between Jesse and Cruz, Jesse spoke to his
Mexican source of supply. During the call, Jesse explained that he was traveling to
Duluth, Minnesota, “taking like five up there right now” and that he has been using
an alternative source of supply, “working, with some other {dudes} right now.” Id. at
A-101 (Ex. 58) (alteration in original). Jesse explained to his Mexican source that he
needed to buy from this alternative source (Cruz) because Jesse “lost a lost of money
and you guys had been out.” Id. at A-102 (Ex. 58). Jesse feared that his “people
[would] go somewhere else” if he did not obtain more drugs. Id. Jesse told the
Mexican source, “[I]f I don’t keep making money then shit, I’m gonna go broke, you
know what I’m saying? So . . . so I been somewhere else right now. Just getting like
ten at a time, cash money, you know?” Id. (ellipsis in original). Jesse and the Mexican
source also discussed Jesse’s outstanding debt to the Mexican source. Jesse stated, “I
just lost a lot of {money}, but yeah, I got the twelve, you know?” Id. (alteration in
original). Jesse asked the Mexican source to have one of the Wisconsin stash house
operators, Rojas-Andrade, contact him the next day to meet at the gas station near the
Wisconsin stash house to collect the money. On August 17, 2015, Jesse went to the
gas station near the Wisconsin stash house and provided Escobar and Noyola
approximately $6,000.
The Mexican source had indicated to Jesse that he would be able to provide
Jesse with a large quantity of methamphetamine. On the morning of August 18, 2015,
Rojas-Andrade called Jesse to determine when Jesse would pick up the
methamphetamine. Rojas-Andrade gave the phone to Escobar, and Escobar explained
to Jesse that there were “fifty special for you.” Id. at A-106 (Ex. 67).
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Following the call, Jesse contacted a number of coconspirators to inform them
of the imminent arrival of 50 pounds of methamphetamine. Jesse told Cruz, “I guess
those guys got the shit in now for me, so um . . . I don’t know . . . when I need
something next. I don’t know yet. When I go check out see what they got and shit
. . . hopefully it’s good.” Id. at A-112 (Ex. 72) (ellipses in original). He also notified
his distributors, Chevre and Jackson. He told Chevre, “I gotta get going here, get
building back up man, but I need you on my team for sure . . . . These dudes just
[expletive] came through with the other one so I gotta pick up like fifty of them.”
Id. at A-116 (Ex. 77). Jesse told Jackson, “[T]hese fools are ready to go, they got fifty
of them for me man, but they want us to [expletive] get on our hustle and shit in a
major way. . . . [T]hey want me to come with some paper though to grab these fifty.”
Id. at A-110 (Ex. 71). Jackson met with Jesse the evening of August 18, 2015, and
provided him with just over $16,000.
Following Jesse’s meeting with Jackson, Jesse spoke with the Mexican source
of supply. The Mexican source wanted to know if Jesse would be able to handle
receiving 50 pounds of methamphetamine. Jesse replied, “I don’t know I mean I was
gonna take less than that cause like right now, I’m slow as hell right now, but I just
picked up some money but I’m gonna go count it right now so I don’t know how
much I got right now.” Id. at A-118 (Ex. 78).
Jesse counted the money he received from Jackson on August 19, 2015. Jesse
called Jackson and told him that the cash amounted to “[s]ixteen thousand, twenty
dollars.” Id. at A-125 (Ex. 82). Jackson responded that there “should’ve been like
twenty six [thousand].” Id.
Earlier in the day on August 19, 2015, Cruz had called Jesse to find out whether
Jesse had gone to the stash house to inspect the methamphetamine. Cruz reassured
Jesse that he was still available as a methamphetamine source if the Mexican source
fell through.
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While Jesse was preparing to receive 50 pounds of methamphetamine, 91
pounds arrived at the Wisconsin stash house. Escobar and Noyola met the load driver
at a nearby gas station and brought the methamphetamine back to the Wisconsin stash
house. Shortly thereafter, Rojas-Andrade arrived in Wisconsin and packaged the
drugs. After delivering 2 of the 91 pounds to another customer, Rojas-Andrade,
Escobar, and Noyola went back to the Wisconsin stash house. On their way, Martinez
spoke to Jesse and told him that they had 50 pounds of methamphetamine for him.
After speaking to Martinez, Jesse drove in his Kia to the Wisconsin stash house
and picked up a suitcase with 50 pounds of methamphetamine inside. After leaving
the house, state troopers stopped Jesse’s vehicle. Fifty pounds of methamphetamine
were recovered from the trunk.
In anticipation of Jesse traveling to Wisconsin to retrieve the methamphetamine,
law enforcement established a perimeter at the Wisconsin stash house and obtained
an anticipatory search warrant. After hearing that Jesse had been stopped and that 50
pounds of methamphetamine were recovered, law enforcement saw Escobar and
Noyola leaving the area and stopped them. Officers then executed the search warrant.
During the search of the Wisconsin stash house, approximately 29 pounds of
methamphetamine was recovered from a dining room freezer. One firearm was
recovered from Escobar’s bedroom, and the other firearm was recovered from
Noyola’s bedroom. The firearm recovered from Escobar’s bedroom was between the
mattress and box spring and was loaded. Weeks prior, Rojas-Andrade had given
Noyola a gun for protection.
Law enforcement subsequently executed additional search warrants, including
at the Case Avenue residence. At that residence, law enforcement seized five more
pounds of methamphetamine from a duffel bag on the garage floor. Because the
Mexican source of supply had been out of drugs for some time, the five pounds of
methamphetamine seized from the Case Avenue residence was supplied by Cruz.
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Jackson remained a fugitive until October 26, 2015, when he was located at a
residence in West St. Paul, Minnesota. Following a high-speed chase, law
enforcement arrested Jackson. The rental vehicle Jackson was driving was towed to
an impound lot. Shortly after Jackson’s arrest, he placed a phone call from jail to his
parents. In that call, he indicated that “all [his] stuff [was] in the trunk” of the vehicle.
Appellee’s Br. at 22 (quoting Appellee’s App. at A-131 (Ex. 111)). Deputy U.S.
Marshals returned to the impound lot after listening to the phone call and searched the
vehicle. They seized 445.8 grams of methamphetamine (440.45 grams of actual
methamphetamine) from under the carpet inside the vehicle’s trunk.
B. Procedural History
1. Indictment and Trial
On September 22, 2015, an indictment was filed charging 11
individuals—including Escobar, Rojas-Andrade, Jackson, and Garcia—with a single
count of conspiring to distribute methamphetamine from as early as December 2014
to on or about August 19, 2015 (“Count 1”). On October 14, 2015, a superseding
indictment was filed adding two more people to the conspiracy, including Cruz. On
June 13, 2016, an information was filed, charging Garcia with possessing with intent
to distribute methamphetamine. On June 15, 2016, a second superseding indictment
was filed continuing to charge the defendants who had not pleaded guilty, including
Escobar, Jackson, and Cruz, with conspiring to distribute methamphetamine and
adding two additional counts. Relevant to the present case, Count 3 charged Jackson
with possessing methamphetamine with intent to distribute at the time of his arrest on
October 26, 2015.
Jackson, Escobar, and Cruz proceeded to trial. Prior to trial, Jackson moved to
suppress evidence obtained from the last wiretap, TT4. He argued that the wiretap
affidavit failed to establish the requisite necessity, noting that some investigative
techniques used during the investigation were successful. The district court denied the
motion.
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Escobar also moved to suppress the evidence seized as a result of the
anticipatory search warrant for the Wisconsin stash house, arguing that the warrant
lacked probable cause. Specifically, he argued that there was no probable cause for the
triggering condition of the warrant. The district court denied the motion, finding that
probable cause existed or, in the alternative, that the good-faith exception applied.
Three weeks prior to trial, Jackson moved to sever Counts 1 and 3, arguing that
joinder was not proper and that failure to sever the counts would severely prejudice
him. The district court denied the motion. At the trial’s conclusion, the court
instructed the jury to separately consider each count.
Also prior to trial, the government provided notice to Jackson that it intended
to seek admission of his prior drug convictions as evidence under Federal Rule of
Evidence 404(b). Specifically, it sought to introduce a 2008 federal conviction for
conspiracy to distribute and possess with intent to distribute 50 grams or more of
methamphetamine and a 2009 Minnesota conviction for possession of more than six
grams (in total 19 grams) of methamphetamine. Jackson objected. The district court
ruled that the convictions were admissible for the limited purpose of showing motive,
intent, and knowledge. During trial, before the introduction of the convictions, the
court gave the jury a limiting instruction, explaining that the prior convictions could
only be used to prove knowledge and intent. In its closing, the government also
cautioned the jury about the limited use of the prior convictions.
The jury was provided a special verdict form as to each defendant. If it found
a defendant guilty of the conspiracy charge, it had three options to determine the
quantity of methamphetamine involved in the conspiracy as to each defendant: (1) less
than 50 grams; (2) 60 grams or more, but less than 500 grams; or (3) 500 grams or
more. Cruz did not object to submission of these three options to the jury.
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At the close of the government’s case, Jackson and Cruz moved for a judgment
of acquittal. See Fed. R. Crim. P. 29. Jackson generally asserted that the government
failed to meet its burden of proof. Cruz, on the other hand, argued that insufficient
evidence existed that he joined the conspiracy. He also argued that he never actually
provided any quantities of methamphetamine to Jesse. The court denied the motions.
The jury convicted each defendant on all counts charged. It further found each
defendant responsible for 500 grams or more of methamphetamine.
2. Sentencing
a. Cruz’s Sentencing
At Cruz’s sentencing, he objected to the presentence report’s (PSR) calculation
of his base offense level. He objected to the inclusion of the methamphetamine seized
at the Case Avenue residence and the 50 pounds of methamphetamine seized from
Jesse in the drug quantity amount. The court overruled the objection, resulting in a
Guidelines range of 292 to 365 months’ imprisonment. The court considered the 18
U.S.C. § 3553(a) factors and varied downward. It sentenced Cruz to 250 months’
imprisonment—42 months below the low end of the Guidelines range.
b. Jackson’s Sentencing
Jackson’s PSR classified him a career offender as a result of his prior drug
convictions, but because the adjusted offense level was higher than the career offender
guidelines, the PSR used the Guidelines otherwise applicable. The parties agreed with
the PSR that the Guidelines range was 360 months to life imprisonment. Jackson
requested a downward variance due to his role in the conspiracy, his age, the fact he
did not use a firearm, and the need to avoid disparities with similarly situated
codefendants. The district court granted Jackson’s request for the variance based on
the § 3553(a) factors and sentenced Jackson to 330 months’ imprisonment—30
months below the low end of the Guidelines range.
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c. Escobar’s Sentencing
Prior to his sentencing, Escobar objected to the PSR’s recommended two-level
enhancement for possessing a firearm in connection with drug-trafficking pursuant to
U.S.S.G. § 2D1.1(b)(1). In support of the enhancement, the government relied on
evidence adduced at trial and offered a partial transcript of Escobar’s post-arrest
interview. During that interview, Escobar admitted knowing Rojas-Andrade had guns
at the Wisconsin stash house. The district court overruled the objection. It calculated
a guidelines range of 360 months to life imprisonment. It then varied downward,
sentencing Escobar to 260 months’ imprisonment.
d. Rojas-Andrade’s Sentencing
Rojas-Andrade indicated that he wanted to withdraw his guilty plea five months
after the trial of his codefendants and after the final PSR was submitted to the district
court. Rojas-Andrade’s counsel explained that Rojas-Andrade was dissatisfied with
certain concessions made in the plea agreement as to the applicable Guidelines
enhancements. The district court denied the motion and proceeded to sentencing.
Rojas-Andrade’s PSR recommended a two-level enhancement for his role in the
offense, an enhancement for firearms, and an enhancement for maintaining a stash
house. Rojas-Andrade objected. The district court overruled Rojas-Andrade’s
objections. The court then calculated a Guidelines range of 360 months to life
imprisonment. After hearing the arguments of counsel and considering the § 3553(a)
factors, the district court varied downward and sentenced Rojas-Andrade to 300
months’ imprisonment—60 months below the Guidelines range.
e. Garcia’s Sentencing
Garcia pleaded guilty to the information charging him with possession to
distribute methamphetamine stemming from his June 16, 2015 arrest. The PSR
calculated a base offense level of 28 because Garcia possessed with intent to distribute
36.58 grams of actual methamphetamine. Garcia did not object to this paragraph of
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the PSR. The court sentenced Garcia to 137 months’ imprisonment, the top of the
Guidelines range.
II. Discussion
On appeal, the appellants raise a variety of issues related to their convictions
and sentences. We consider each in turn.
A. Escobar
Escobar appeals the denial of his motion to suppress evidence obtained through
the search of the Wisconsin stash house. Authorities used an anticipatory search
warrant to gain entry. We review legal issues de novo and factual findings for clear
error. United States v. Hudspeth, 525 F.3d 667, 674 (8th Cir. 2008). The warrant
required the following condition: a coconspirator, Jesse, would travel to the house
within a specified date range to pick up 50 pounds of methamphetamine and officers
would stop the car after Jesse left the house and find the drugs. Investigators learned
of Jesse’s plans from a wiretap, but the affidavit supporting the warrant application
did not disclose the wiretap as a source. Escobar posits that because the affidavit does
not disclose the information source, it does not establish probable cause that the
triggering condition would occur, as required under United States v. Grubbs, 547 U.S.
90, 96–97 (2006). Even if there was no probable cause, we conclude the good-faith
exception applies because under the totality of the circumstances, officers’ reliance
on the warrant was objectively reasonable. See United States v. Proell, 485 F.3d 427,
431 (8th Cir. 2007) (“When assessing the objective reasonableness of police officers
executing a warrant, we must look to the totality of the circumstances, including any
information known to the officers but not presented to the issuing judge.” (cleaned
up)). Therefore, we affirm the denial of Escobar’s motion to suppress.
Escobar also appeals the application of a two-level sentencing enhancement for
possession of a dangerous weapon in connection with a drug offense under U.S.S.G.
§ 2D1.1(b)(1). We review for clear error. United States v. Payne, 81 F.3d 759, 762
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(8th Cir. 1996). The government must prove by a preponderance of the evidence that
there was “a temporal and spatial nexus among the weapon, defendant, and drug-
trafficking activity.” United States v. Torres, 409 F.3d 1000, 1003 (8th Cir. 2005).
Officers found the gun between the box spring and the mattress in Escobar’s bedroom
in the Wisconsin stash house. It was not clear error for the district court to find this
constructive possession proved temporal and spatial nexus. See id. Therefore, we
affirm the enhancement.
B. Rojas-Andrade
Rojas-Andrade appeals the district court’s refusal to allow him to withdraw his
guilty plea prior to sentencing. “[W]e review the district court’s decision to deny a
motion to withdraw a plea for abuse of discretion.” United States v. Maxwell, 498 F.3d
799, 801 (8th Cir. 2007). A defendant may withdraw a guilty plea before sentencing
if he or she “can show a fair and just reason for requesting the withdrawal.” Fed. R.
Crim. P. 11(d)(2)(B). Rojas-Andrade requested withdrawal because he disagreed with
the recommended sentencing enhancements in the PSR. A defendant's
“misunderstand[ing of] how the sentencing guidelines will apply to his case” is not
a “fair and just reason” to withdraw a guilty plea. United States v. Ramirez-
Hernandez, 449 F.3d 824, 826 (8th Cir. 2006). Therefore, we affirm denial of his
motion to do so.
Rojas-Andrade also argues that his “300[-]month sentence is inherently
unreasonable despite the advisory guideline range.” Rojas-Andrade’s Br. at 8. We
review this sentence for an abuse of discretion, first ensuring that the district court
committed no significant procedural error. United States v. Feemster, 572 F.3d 455,
461 (8th Cir. 2009) (defining procedural error). In the absence of procedural error we
consider a sentence’s substantive reasonableness, taking into account the totality of
the circumstances. Id. We may presume a within-Guidelines sentence is reasonable.
Id.
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Rojas-Andrade acknowledges that his sentence “constituted a downward
variance from the guideline range.” Rojas-Andrade’s Br. at 9. But he argues that the
district court “started from an unreasonable starting point and arrived at an equally
unreasonably final number.” Id. Rojas-Andrade argues the district court erred by
considering evidence admitted during the trials of his coconspirators. Relying on these
facts was not error, however, because the court may consider relevant information at
sentencing as long as it “has sufficient indicia of reliability to support its probable
accuracy.” United States v. Woods, 596 F.3d 445, 448 (8th Cir. 2010) (quoting
U.S.S.G. § 6A1.3(a)). He maintains that the district court “made erroneous findings
of fact by adopting the factual basis of the PSR, placing him near the top of the
conspiracy,” Rojas-Andrade’s Br. at 9, but he fails to identify which factual findings
were erroneous. Nor did Rojas-Andrade object to the facts in the PSR. “We rely on
and accept as true the unobjected to facts in the PSR.” United States v. Betts, 509 F.3d
441, 444 (8th Cir. 2007) (citing Fed. R. Crim. P. 32(i)(3)(A); United States v.
Wintermute, 443 F.3d 993, 1005 (8th Cir. 2006)). Furthermore, “[a] sentencing judge
who also presided over the trial, as in this case, may base his factual findings on the
trial record and is not required to hold an evidentiary hearing prior to sentencing.”
United States v. Maggard, 156 F.3d 843, 848 (8th Cir. 1998) (citing United States v.
Wiggins, 104 F.3d 174, 178 (8th Cir. 1997)). Rojas-Andrade also argues the district
court did not properly weigh the § 3553 factors and the sentence is substantively
unreasonable. After reviewing the record, we conclude that the district court did not
err in weighing the statutory factors and that the below-Guidelines sentence is
substantively reasonable.
C. Jackson
First, Jackson appeals the denial of his motion to suppress wiretap evidence. We
review legal issues de novo and factual findings for clear error. United States v.
Milliner, 765 F.3d 836, 839 (8th Cir. 2014) (per curiam). “Before granting an
application for a wiretap, a judge must first determine that ‘normal investigative
procedures have been tried and have failed or reasonably appear to be unlikely to
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succeed if tried or to be too dangerous.’” United States v. Thompson, 690 F.3d 977,
986 (8th Cir. 2012) (quoting 18 U.S.C. § 2518(3)(c)). Jackson argues traditional
investigative techniques were successful and therefore the wiretap was not necessary.
But the wiretap affidavit explains that despite some success with traditional
techniques, investigators were “unable to identify all of the members of the [drug
trafficking operation], the methods which the organization uses to transport drugs to
Minnesota and elsewhere, where and how the drugs are stored, the organization’s drug
source of supply and all of their drug customers.” Appellee’s App. at A-43. The
wiretap affidavit “establish[ed] that conventional investigatory techniques [were not]
successful in exposing the full extent of the conspiracy.” Milliner, 765 F.3d at 839
(emphasis added). We, therefore, affirm the denial of the motion to suppress.
Second, Jackson appeals the denial of his motion to sever Counts 1 (conspiracy
to distribute methamphetamine) and 3 (possession of methamphetamine with intent
to distribute). The court may order separate trials of counts if joinder would prejudice
a party. Fed. R. Crim. P. 14(a). We review for abuse of discretion and will not reverse
unless the denial of a motion to sever resulted in “severe prejudice” to the defendant.
United States v. Geddes, 844 F.3d 983, 988 (8th Cir. 2017) (quoting United States v.
Steele, 550 F.3d 693, 702 (8th Cir. 2008)). Severe prejudice requires a showing that
the denial deprived the defendant of “an appreciable chance for an acquittal.” Id.
(quoting United States v. Scott, 732 F.3d 910, 916 (8th Cir. 2013)). There was no
severe prejudice here. Overwhelming evidence supported conviction on Count 1, not
even considering the events underlying Count 3. And evidence supporting Count 1
“would be properly admissible in a separate trial for [Count 3].” Id. (quoting United
States v. Erickson, 610 F.3d 1049, 1055 (8th Cir. 2010)); see also United States v.
Robinson, 639 F.3d 489, 494 (8th Cir. 2011) (explaining that prior drug distribution
convictions are relevant under Rule 404(b) to demonstrate intent to distribute). Thus,
it was not an abuse of discretion to deny the motion to sever.
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Third, Jackson appeals the admission of his 2008 federal conviction for
conspiracy to distribute 50 grams or more of methamphetamine and his 2009 state
conviction for second-degree possession of six grams or more of methamphetamine.
We review the admission evidence under Federal Rule of Evidence 404(b) for abuse
of discretion. United States v. Walker, 428 F.3d 1165, 1169 (8th Cir. 2005). Evidence
of a prior crime may be admissible under Rule 404(b) if it is “1) relevant to a material
issue; 2) proven by a preponderance of the evidence; 3) of greater probative value than
prejudicial effect; and 4) similar in kind and close in time to a charged offense.” Id.
Jackson claims the district court abused its discretion in admitting evidence of his
prior drug convictions under Rule 404(b) because (1) they were too remote in time;
and (2) his possession conviction was not similar in kind to the drug trafficking
charges in this case.
Jackson claims the convictions were too remote in time. “To determine if a
crime is too remote in time to be admissible under Rule 404(b), we apply a
reasonableness standard, evaluating the facts and circumstances of each case.” United
States v. Walker, 470 F.3d 1271, 1275 (8th Cir. 2006). “[T]here is no fixed period
within which the prior acts must have occurred.” United States v. Baker, 82 F.3d 273,
276 (8th Cir. 1996). But “[w]e have generally been reluctant to uphold the
introduction of evidence relating to acts or crimes which occurred more than thirteen
years prior to the conduct challenged. Nevertheless, our reluctance does not constitute
a definitive rule.” United States v. Halk, 634 F.3d 482, 487 (8th Cir. 2011) (citation
omitted). “The Halk decision, however, recognizes that the 13-year rule does not
apply where the defendant spent part of that time in prison.” United States v. Aldridge,
664 F.3d 705, 714 (8th Cir. 2011) (citing Halk, 634 F.3d at 488–89 (allowing
evidence of a 19-year-old conviction where the defendant spent more than 12 of those
years in prison); United States v. Williams, 308 F.3d 833, 837 (8th Cir. 2002)
(allowing evidence of a 20–year–old conviction where the defendant spent 16 of those
years in prison); Walker, 470 F.3d at 1275 (allowing evidence of an 18-year-old
conviction where the defendant spent 10 of those years in prison)).
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Jackson’s convictions are not too remote in time. The convictions are well
within the 13-year period. Further, Jackson received 80 months’ imprisonment for his
federal conviction during that time, reducing the time gap between the prior offenses
and the present conduct.
Jackson also argues his 2009 drug possession conviction was inadmissible
under Rule 404(b) in a case involving the distribution of drugs. But “[i]t is settled in
this circuit that ‘a prior conviction for distributing drugs, and even the possession of
user-quantities of a controlled substance, are relevant under Rule 404(b) to show
knowledge and intent to commit a current charge of conspiracy to distribute drugs.’”
United States v. Robinson, 639 F.3d 489, 494 (8th Cir. 2011) (quoting United States
v. Frazier, 280 F.3d 835, 847 (8th Cir. 2002)). Thus it was not an abuse of discretion
to admit Jackson’s prior convictions.
Fourth, Jackson argues the evidence was insufficient to support his convictions
for Count 1 (conspiracy to distribute methamphetamine) and Count 3 (possession of
methamphetamine with intent to distribute). We review de novo, viewing “the trial
evidence in the light most favorable to the government, resolving evidentiary conflicts
in favor of the government, and accepting all reasonable inferences draw from the
evidence that support the jury’s verdict.” United States v. Johnson, 519 F.3d 816, 821
(8th Cir. 2008) (quoting United States v. Zimmermann, 509 F.3d 920, 925 (8th Cir.
2007)). Jackson argues his conviction under Count 1 should be vacated because there
was insufficient evidence that he and Jesse had reached an agreement to distribute
methamphetamine. See United States v. Espino, 317 F.3d 788, 792 (8th Cir. 2003)
(“To establish that a defendant conspired to distribute drugs under 21 U.S.C. § 846,
the government must prove: (1) that there was a conspiracy, i.e., an agreement to
distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that the
defendant intentionally joined the conspiracy.”). Jackson is wrong. The recorded
conversation between Jackson and Jesse revealed more than just Jackson’s
acknowledgment of a debt to Jesse. Jackson also told Jesse he would meet with Jesse
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to get drugs. The discussion topics included frequency of their meetings, Jackson’s
previous source, and the need for safety. The jury could conclude—and did
conclude—that the communication involved an agreement to meet and exchange cash
for drugs. In another conversation, Jesse told Jackson that he needed money for the
50 pounds of methamphetamine. Jackson replied, “I got you.” Appellee’s App. at A-
110 (Ex. 71). The two men subsequently met, and Jackson handed Garcia $16,020 in
cash. The jury could reasonably infer that Jackson gave money to Jesse as part of the
agreement in the conspiracy to distribute drugs.
Jackson also claims that his conviction under Count 3 should be vacated
because there was insufficient evidence that he knew the methamphetamine was in the
vehicle. See United States v. Thompson, 686 F.3d 575, 583 (8th Cir. 2012) (“To
sustain a conviction for possession with intent to distribute under 21 U.S.C. § 841, the
jury must find beyond a reasonable doubt that [the defendant] (1) knowingly
possessed a controlled substance and (2) intended to distribute some or all of it.”).
According to Jackson, “it was not unreasonable for [him] to be unaware that drugs
were carefully hidden in the trunk of a car he did not own.” Jackson’s Br. at 46. He
relies on United States v. Pace, 922 F.2d 451 (8th Cir. 2009).
In Pace, at the time of the stop, the defendant was the driver of a car that was
transporting almost 200 pounds of cocaine divided among three duffle bags and a
suitcase. 922 F.3d at 452–53. The defendant had either been driving the car or
sleeping in the front passenger seat of the vehicle during the entire day and a half of
the trip. Id. at 453. The drug-filled bags and suitcase were on the floor in the back seat
or in the vehicle’s cargo area. A codefendant testified that he did not tell the defendant
what was in the luggage. Id. The government argued “that the street value of these
drugs (estimated at between twelve and fifteen million dollars) meant that they would
not be casually entrusted to an uninformed outsider” and “the extended amount of
time [the defendant] spent in the car meant that he had to have discovered what was
in the luggage.” Id. The jury convicted the defendant, but we reversed, holding the
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evidence insufficient to show beyond a reasonable doubt “that [the defendant] knew
that he was helping carry cocaine across the country.” Id. We concluded the evidence
was insufficient because “it [was] merely conjecture to conclude [the defendant] knew
what those packages contained.” Id. There was “no evidence that [the defendant] ever
explored the cargo area of the station wagon, much less that he examined or opened
[the codefendant’s] luggage that was stored there.” Id.
Pace is distinguishable. Jackson’s own statements led law enforcement to
believe that they had missed something during their initial search. Jackson told his
mother that police had impounded the rental car and that “all [his] stuff [was] in the
trunk” of the vehicle. Appellee’s Br. at 22 (quoting Appellee’s App. at A-131 (Ex.
111)). Thus, unlike the defendant in Pace, Jackson acknowledged that everything in
the trunk belonged to him. Jackson then stated, “I think they thought they were going
to find something in the trunk, but they didn’t. You know what I mean?” Id. A
reasonable jury, knowing that police had already searched the trunk in Jackson’s
presence and found no contraband, could conclude that “they” referred to the police.
Further, the jury could reasonably conclude that the “something” the police thought
they would find would be something of interest to the police, such as contraband.
After reviewing the record, we conclude there was sufficient evidence on Count 3.
Finally, Jackson argues his 330-month sentence is substantively unreasonable
because the court did not give proper weight to mitigating factors. We review for
abuse of discretion. Feemster, 572 F.3d at 461 (standard of review). Jackson presented
the mitigating factors to the district court and received a below Guidelines sentence.
We conclude there was no abuse of discretion and the sentence is substantively
reasonable.
D. Garcia
Garcia notes that he pleaded guilty to an information alleging a single count of
possession with intent to distribute methamphetamine. He did not plead guilty to a
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conspiracy charge. Consequently, according to Garcia, U.S.S.G. § 2D1.1. required the
district court to exclude the portion of the methamphetamine intended for his personal
use in calculating his base offense level. Garcia argues that the court knew of his drug
addiction. The court knew, from the change-of-plea hearing, that he acquired
methamphetamine for distribution but it also knew that he may have obtained some
for himself.
Prior to sentencing, the PSR provided that Garcia was accountable for 36.58
grams of methamphetamine (actual). At sentencing, Garcia, proceeding pro se,
challenged the purity of the drugs—not what portion of the methamphetamine was
intended for his personal use, as opposed to distribution. The government then called
the chemist who tested the drugs to testify. Following the chemist’s testimony, the
district court inquired whether the government or Garcia had “[a]nything further
before the Court makes findings with respect to the Presentence Report.” Sentencing
Hr’g Tr. at 19, United States v. Garcia, No. 0:15-cr-00260 (D. Minn. Jan. 13, 2017),
ECF No. 908. After the government responded that it had nothing else, the court then
specifically asked Garcia if he had “anything else,” and Garcia responded, “No I do
not, sir.” Id. The court then ruled, “[T]he Court does adopt the findings of Exhibit
Number 1 from the BCA lab by a preponderance of the evidence and believes that that
is the weight and purity that is involved.” Id. (emphasis added). Thereafter, the court
asked whether Garcia had “any further objections other than that previously
indicated.” Id. at 20. Garcia replied, “Other than that, then I believe that’s—you know,
that was the big issue . . . . [A]s far as objections to the PSR, no, I don’t believe I have
any other objections.” Id. at 21. Thus, the court “adopt[ed] the findings as [it had] just
indicated.” Id.
Our review of the record shows that Garcia objected only to drug purity—not
what portion of the 36.58 grams of methamphetamine was for his personal use. And,
when specifically asked if he had any further objections to the PSR, Garcia indicated
that he did not. Because Garcia lodged no objection to the drug-quantity calculation,
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our review is for plain error. See United States v. Hanshaw, 686 F.3d 613, 617 (8th
Cir. 2012) (per curiam) (holding appellate review is plain error when pro se defendant
fails to raise objection to the district court). The district court “may accept any
undisputed portion of the presentence report as a finding of fact.” Fed. R. Crim. P.
32(i)(3)(A).Garcia did not object to the drug quantity listed in the PSR, both prior to
and at sentencing. By admitting to the drug quantity, Garcia cannot now on appeal
assert that the district court erred by accepting an admitted fact. The district court did
not err—plain or otherwise—in calculating that the 36.58 grams of methamphetamine
was intended for distribution.
E. Cruz
Cruz first argues the district court erred in admitting recorded out-of-court
statements of coconspirators as non-hearsay under Federal Rule of Evidence
801(d)(2)(E). Specifically, Cruz challenges the admission of statements that Jesse
made on a recorded phone call with Cruz.
We review interpretation of the rules of evidence de novo and admission of
evidence for abuse of discretion. United States v. Cazares, 521 F.3d 991, 998 (8th Cir.
2008).
A statement is not hearsay if it “is offered against an opposing party and
. . . was made by the party’s coconspirator during and in furtherance of the
conspiracy.” Fed. R. Evid. 801(d)(2)(E).
It is well-established that an out-of-court declaration of a coconspirator
is admissible against a defendant if the government demonstrates (1) that
a conspiracy existed; (2) that the defendant and the declarant were
members of the conspiracy; and (3) that the declaration was made during
the course and in furtherance of the conspiracy.
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United States v. Bell, 573 F.2d 1040, 1043 (8th Cir. 1978). We have held
that an out-of-court statement is not hearsay and is admissible if on the
independent evidence the district court is satisfied that it is more likely
than not that the statement was made during the course and in
furtherance of an illegal association to which the declarant and the
defendant were parties.
Id. at 1044. A preponderance-of-the-evidence standard is sufficient proof of a
conspiracy for purposes of admitting a coconspirator’s statement. Id.
Here, Jesse’s statements provide context for Cruz’s responses and demonstrate
the existence of an agreement. Thus, admission of these statements was proper
because they are not “assertions” offered “to prove the truth of the matter asserted.”
Fed. R. Evid. 801(a), (c)(2) (defining hearsay). Cruz also challenges the admission of
Jesse’s recorded statement to the Mexican supplier that Jesse was working “ten at a
time” with another supplier, presumed to refer to ten pounds of drugs Cruz sold to
Jesse. Even if this statement was inadmissible hearsay, its admission was harmless
because Jesse made a nearly identical statement to a distributor who was one of Cruz’s
coconspirators. See United States v. Whitehead, 238 F.3d 949, 952 (8th Cir. 2001). We
affirm the district court’s evidentiary rulings.
Second, Cruz argues there was insufficient evidence of drug quantity to support
his conviction for conspiracy to distribute more than 500 grams of a mixture
containing methamphetamine pursuant to 21 U.S.C. § 841(a)(1), (b)(1)(A). See
Johnson, 519 F.3d at 821 (standard of review). The jury heard circumstantial evidence
that Cruz sold at least a couple pounds of methamphetamine to Jesse before Jesse
traveled to Duluth. After reviewing the trial record, we conclude a reasonable jury
could conclude based on this evidence that Cruz conspired to distribute more than 500
grams of a mixture containing methamphetamine. We affirm the conviction.
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Third, Cruz argues the district court erred in its drug-quantity calculation under
the Guidelines because it attributed to Cruz 50 pounds of methamphetamine recovered
from Jesse’s car. Cruz asserts that he “played no role in the acquisition, distribution,
or storage of these drugs”; therefore, “these controlled substances do not constitute
‘relevant conduct’ under USSG § 1B1.3.” Cruz’s Br. at 22. He contends that because
of this error, the district court increased his Guidelines range from 121 to 151 months’
imprisonment to 292 to 365 months’ imprisonment. We review the drug-quantity
calculation for clear error. United States v. Plancarte-Vazquez, 450 F.3d 848, 852 (8th
Cir. 2006).
Cruz’s PSR found that Cruz was responsible for the 50 pounds of
methamphetamine seized from Jesse’s vehicle on August 19, 2015, as well as the 5
pounds of methamphetamine seized from the Case Avenue residence. This resulted
in a base offense level of 38 and a Guidelines range of 292 to 365 months’
imprisonment. At sentencing, Cruz objected to the inclusion of both quantities of
drugs. The district court overruled Cruz’s objection based upon the trial evidence and
its review of the PSR.
In the case of a jointly undertaken criminal activity, relevant conduct
includes all acts and omissions of others that were (i) within the scope of
the jointly undertaken criminal activity, (ii) in furtherance of that
criminal activity, and (iii) reasonably foreseeable in connection with that
criminal activity and that occurred during the commission of the offense
of conviction. When determining whether acts of co-conspirators qualify
as relevant conduct under the guidelines, we look to the scope of the
individual defendant’s undertaking and foreseeability in light of that
undertaking, rather than the scope of the conspiracy as a whole.
United States v. Gaye, 902 F.3d 780, 789–90 (8th Cir. 2018) (cleaned up).
For purposes of calculating drug quantity in a drug conspiracy case, the
district court may consider amounts from drug transactions in which the
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defendant was not directly involved if those dealings were part of the
same course of conduct or scheme. This includes all transactions known
or reasonably foreseeable to the defendant that were made in furtherance
of the conspiracy.
United States v. King, 898 F.3d 797, 809 (8th Cir. 2018) (cleaned up).
We conclude that the district court did not clearly err in finding that the 50
pounds of methamphetamine seized from Jesse’s car were attributable to Cruz. Cruz
belonged to the conspiracy to distribute drugs to the Minnesota/Wisconsin area. The
conspiracy consisted of at least two sources of methamphetamine, of which Cruz was
one source. After the Mexican source contacted Jesse about receiving 50 pounds of
methamphetamine, Jesse contacted Cruz to inform him of its imminent arrival.
Thereafter, Cruz called Jesse to find out whether Jesse had gone to the stash house to
inspect the methamphetamine. Cruz reassured Jesse that he was still available as a
methamphetamine source if the Mexican source fell through. This evidence shows that
Cruz was aware of the drug transaction, which was part of the conspiracy to distribute
drugs in the Minnesota/Wisconsin area.
III. Conclusion
We affirm the judgment of the district court in all respects.
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