United States v. Petronilo Salvador ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3791
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United States of America, *
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Plaintiff - Appellee, *
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v. *
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Petronilo Payan Salvador, *
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Defendant - Appellant. *
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Appeals from the United States
No. 05-1257 District Court for the District
___________ of Minnesota.
United States of America, *
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Plaintiff - Appellee, *
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v. *
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Alonso Urquidez-Tellez, *
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Defendant - Appellant. *
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Submitted: September 13, 2005
Filed: October 20, 2005
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Before MELLOY, LAY and BENTON, Circuit Judges.
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MELLOY, Circuit Judge.
Alonso Urquidez-Tellez was convicted after a jury trial of conspiracy to
distribute methamphetamine, possession with intent to distribute thirteen ounces of
methamphetamine, and possession of a firearm in relation to a drug trafficking
offense. As a result of the same investigation that lead to Urquidez-Tellez’s
conviction, Petronilo Payan Salvador pled guilty to conspiracy to distribute
methamphetamine and possession of a firearm in relation to a drug trafficking offense.
Urquidez-Tellez’s only argument on appeal is that there was insufficient evidence to
support his conviction. Salvador argues the district court1 improperly denied him a
sentence reduction. We affirm.
I. Background
In the summer of 2003, the Hennepin County Sheriff’s Office was investigating
a group of methamphetamine traffickers based in south Minneapolis. This
investigation resulted in five indictments, including those of the two appellants.
During the course of the investigation, an undercover officer made three
methamphetamine purchases from the group. The first two purchases were for two
ounces each. For the third purchase, the undercover officer arranged to buy thirteen
ounces of methamphetamine.
To facilitate each sale, members of the conspiracy drove to a parking lot where
they met the undercover officer. Because of the size of the third purchase, the
members of the conspiracy sent three vehicles to the location of the transaction. The
1
The Honorable James M. Rosenbaum, Chief Judge, United States District
Court for the District of Minnesota.
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occupants of the first vehicle, including Salvador, negotiated the drug deal with the
officer. The first vehicle had a semi-automatic pistol in the glove compartment.
Urquidez-Tellez was a passenger in the second vehicle, which contained a loaded .357
magnum between the center console and the passenger seat. The trunk of the second
vehicle contained the drugs which were hidden in a cereal box. Another co-
conspirator and a person who was not charged were in the third vehicle. The record
does not indicate whether the third vehicle contained any weapons.
After the undercover officer indicated that she needed to leave the parking lot
to obtain the cash for the purchase, she gave a signal, and officers moved in and
arrested the occupants of all the vehicles. A search warrant was then executed at the
house where many of those arrested, including both appellants, were staying. Officers
recovered an additional eleven ounces of methamphetamine, forty pounds of
marijuana, a sawed-off shotgun, $24,200 in cash, and Western Union receipts for
$57,000 in wire transfers. Urquidez-Tellez went to trial where he was convicted by
a jury. All of the remaining members of the conspiracy pled guilty.
A. Urquidez-Tellez’s Role in the Conspiracy
Urquidez-Tellez, who was the cousin of another member of the conspiracy,
lived in Arizona until shortly before the second methamphetamine purchase. When
the second purchase took place, he was in a Minnesota hospital undergoing surgery
for a hernia. Urquidez-Tellez gave a false name and false date of birth when he
checked into the hospital. He was released on the morning of August 28, 2003. His
doctor told him to go home and get bed rest. Instead, he rode with a co-defendant to
the location of the third methamphetamine purchase which occurred that afternoon.
This co-defendant testified at trial that Urquidez-Tellez was present when the third
methamphetamine purchase was planned and that Urquidez-Tellez touched the .357
magnum in the vehicle en route to the transaction.
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B. Salvador’s Role in the Conspiracy
Salvador’s primary role in the conspiracy was to serve as a translator because
he was the only member of the group that spoke English. He served in this role at all
three of the methamphetamine transactions. During the second transaction, he also
personally handed the drugs to the undercover officer. Salvador also made bank
deposits for a co-conspirator.
II. Urquidez-Tellez’s Appeal
The standard of review for a claim that the evidence was insufficient to support
a conviction is strict. United States v. Hamilton, 332 F.3d 1144, 1149 (8th Cir. 2003)
(quoting United States v. Washington, 318 F.3d 845, 852 (8th Cir. 2003)). This Court
must view the evidence in “the light most favorable to the government, resolving
conflicts in the government’s favor, and accepting all favorable inferences that support
the verdict.” Id. at 1148. The verdict must be upheld if “there is any interpretation
of the evidence that could lead a reasonable-minded jury to find the defendant guilty
beyond a reasonable doubt.” Id. at 1149.
A. The Drug Convictions
Urquidez-Tellez was convicted of conspiracy to distribute methamphetamine
and possession with intent to distribute thirteen ounces of methamphetamine. A
conspiracy conviction requires proof that the defendant entered into an agreement with
at least one other person to sell methamphetamine. United States v. Rodgers, 18 F.3d
1425, 1428-29 (8th Cir. 1994). A conviction for possession with intent to distribute
requires “knowing” possession of the methamphetamine. United States v. Barrow,
287 F.3d 733, 736 (8th Cir. 2002). “Proof of constructive possession is sufficient to
satisfy the element of knowing possession.” United States v. McCracken, 110 F.3d
535, 541 (8th Cir. 1997).
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Urquidez-Tellez contends there was not sufficient evidence to support his
conviction. The crux of his argument is that he was not known to law enforcement
prior to his arrest on August 28, 2003. The fact that he was not previously known to
law enforcement does not mean, however, that he was not involved in the conspiracy.
Urquidez-Tellez was present at the third transaction where the members of the
conspiracy planned to sell thirteen ounces of methamphetamine.2 He was in the car
that contained the drugs, and a co-conspirator testified that Urquidez-Tellez knew the
location of the drugs. Knowledge of the presence of contraband, plus the ability to
control that contraband either directly or through another person establishes
constructive possession. See, e.g., United States v. Johnson, 18 F.3d 641, 647 (8th
Cir. 1994). Although Urquidez-Tellez was not the only person in the vehicle,
constructive possession can be joint. Id. Urquidez-Tellez was also related to a
member of the conspiracy and was staying with members of the conspiracy in a house
where additional methamphetamine was found. Furthermore, a reasonable jury could
infer that Urquidez-Tellez gave false information to the hospital because he was
participating in a criminal enterprise and/or that he would not have disobeyed doctor’s
orders to sit in a vehicle in a parking lot if he was not actively participating in the drug
transaction that was taking place. In summary, we find that there was sufficient
evidence for a reasonable jury to find Urquidez-Tellez guilty beyond a reasonable
doubt on the two drug charges.
B. The Gun Conviction
Urquidez-Tellez was also convicted of possession of a firearm in conjunction
with a drug trafficking offense. For this conviction to stand, a reasonable jury must
have been able to find that Urquidez-Tellez possessed a firearm and that there was a
nexus between his possession of the firearm and his drug trafficking activity.
Hamilton, 332 F.3d at 1150.
2
Although the terms of the sale were agreed to, the drug dealers were arrested
before the money and the drugs changed hands.
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In this case, Urquidez-Tellez occupied a vehicle that contained drugs. Within
his reach was a loaded gun. A reasonable jury could infer that the purpose of the
weapon was to protect the drugs or the drug dealers if anything went wrong during the
sale. United States v. Williams, 104 F.3d 213, 215 (8th Cir. 1997). Another occupant
of the vehicle testified that Urquidez-Tellez knew of the weapon’s presence and
touched it on the way to the drug transaction. Thus, we find that there was sufficient
evidence for a reasonable jury to find Urquidez-Tellez guilty beyond a reasonable
doubt on the gun charge.
III. Salvador’s Appeal
Salvador asserts that the district court erred when it failed to grant him a
reduction in sentence under United States Sentencing Guideline § 3B1.2 on the basis
that he was a minor participant in the conspiracy. “The propriety of a downward
adjustment is determined by comparing the acts of each participant in relation to the
relevant conduct for which the participant is held accountable and by measuring each
participant’s individual acts and relative culpability against the elements of the
offense.” United States v. Belitz, 141 F.3d 815, 818 (8th Cir. 1998). The burden was
on Salvador to establish his entitlement to the reduction. United States v. Johnson,
358 F.3d 1016, 1018 (8th Cir. 2004). A district court’s factual determination of
whether a defendant was a minor participant may only be reversed if clearly
erroneous. Id. at 1017-18.
In addressing Salvador’s request for a reduction the district court stated:
. . . I tell you that I cannot grant your lawyer’s motion or his request that
you be considered a minor participant. You knowingly participated in
a drug crime, and your lawyer says mostly what you did was interpret.
To some extent he is correct. But you were caught in an automobile, in
the front seat of an automobile, with a loaded firearm between you and
the driver. A firearm with which some good people who were not
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breaking the law could potentially have been killed. And that does not
suggest a minor participant to me.3
Salvador asserts that he was a minor player in the conspiracy because he had
no decision-making authority and is therefore less culpable than the majority of his
co-conspirators. However, establishing that a defendant is less culpable than others
does not entitle the defendant to a minor role reduction if he is “deeply involved” in
the offense. United States v. Bush, 352 F.3d 1177, 1182 (8th Cir. 2003). Although
Salvador’s primary role in the conspiracy was as a translator, this does not mean that
he did not play an important role. He was present at all three of the methamphetamine
transactions, and his ability to speak English facilitated the negotiations with the
undercover officer. He handed the drugs to the undercover officer at one transaction.
He rode to another transaction in a vehicle containing a loaded weapon. Thus, despite
his lack of decision-making authority, his role could reasonably be deemed significant.
The fact that Salvador received little money from his role in the conspiracy is not
dispositive. Belitz, 141 F.3d at 819 (finding no clear error in the failure to grant a
minor participant reduction although the defendant had received no profits from his
role in the conspiracy). Evaluating the above factors, we find no clear error in the
district court’s determination that Salvador was not a minor player.
3
Salvador argues that the district court denied him the minor role reduction
solely because of the involvement of the firearm. We do not read the district court’s
statement so narrowly. After a careful review of the record, we find no clear error in
the district court’s decision, and we do not intend our opinion to stand for the
proposition that the possession of a firearm, in and of itself, prevents a reduction in
sentence for serving a minor role in a conspiracy.
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IV. Conclusion
We find that there was sufficient evidence for a reasonable jury to convict
Urquidez-Tellez on each count he appeals. We also find no clear error in the district
court’s denial of a sentence reduction to Salvador. Accordingly, we affirm the
judgments of the district court.
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