United States v. Jaime Lora-Andres ( 2016 )

  •                   United States Court of Appeals
                                 For the Eighth Circuit
                                     No. 16-1549
                                  United States of America
                             lllllllllllllllllllll Plaintiff - Appellee
                                  Jaime Cesar Lora-Andres
                           lllllllllllllllllllll Defendant - Appellant
                         Appeal from United States District Court
                       for the District of South Dakota - Sioux Falls
                               Submitted: November 14, 2016
                                 Filed: December 28, 2016
    Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.
    GRUENDER, Circuit Judge.
           Following a jury trial, Jaime Cesar Lora-Andres was convicted for conspiracy
    to distribute methamphetamine and use of a communication facility to further a
    controlled substance conspiracy, in violation of 21 U.S.C. §§ 841(a)(1) and 843(b),
    respectively. On appeal, Lora-Andres raises three issues. First, he claims the district
    court1 erred by denying his motion to suppress incriminating telephone recordings.
    Second, he contends the district court abused its discretion when it declined to
    instruct the jury regarding the ten-year mandatory minimum sentence applicable if he
    were to be convicted of distributing 500 grams or more of methamphetamine. See 21
    U.S.C. § 841(b)(1)(A)(viii). Third, he argues that the district court erred in applying
    a two-level enhancement for his role as a manager or supervisor in the conspiracy.
    For the reasons discussed below, we affirm.
           In the summer of 2009, Lora-Andres began selling methamphetamine to a
    number of individuals, including Cheryl Pfeffer and Raul Tovar. Between 2009 and
    2010, Pfeffer and Tovar purchased approximately forty ounces of methamphetamine
    from Lora-Andres. Lora-Andres fronted portions of the methamphetamine—a
    common practice in drug conspiracies—and Pfeffer and Tovar were required to pay
    Lora-Andres after they sold the drugs. Lora-Andres also sold methamphetamine to
    Estanislado Pineda, who had worked as a mechanic at Lora-Andres’s car dealership.
    At Lora-Andres’s behest, Pineda then began working for Lora-Andres, acquiring and
    distributing one to five pounds of methamphetamine over the course of the
    conspiracy. While working as Lora-Andres’s distributor, Pineda met Heather
    LeClaire, who introduced him to drug users in the Sioux Falls area. Pineda began
    dating LeClaire and included her in the drug conspiracy. Lora-Andres would front
    the methamphetamine, and Pineda and LeClaire would wire him money after they
    completed sales.
          In 2012, Pineda accompanied Lora-Andres on the first of two trips to
    California, and they brought one to two pounds of methamphetamine back to South
    Dakota. Upon returning to South Dakota, Lora-Andres continued to front
    methamphetamine to Pineda, sometimes through a mutual friend working at Lora-
           The Honorable Karen E. Schreier, United States District Judge for the District
    of South Dakota.
    Andres’s direction. In early 2013, after selling all the methamphetamine, Lora-
    Andres called Pineda to discuss returning to California to acquire more.
           By this time, Pineda and LeClaire were in contact with law enforcement
    officials. Pineda had previously served as a confidential informant for Special Agent
    Emmet Warkenthien of the Bureau of Alcohol, Tobacco, Firearms, and Explosives
    regarding unrelated matters. However, in July 2012, Pineda’s status as a confidential
    informant was terminated after Special Agent Warkenthien lost contact with him. In
    February 2013, Pineda reestablished contact with Special Agent Warkenthien,
    claiming that he had information regarding Lora-Andres’s methamphetamine
    operation. Pineda was instructed to communicate with law enforcement if Lora-
    Andres contacted him. At this time, Pineda was not formally recommissioned as a
    confidential informant.
           In March 2013, Pineda and LeClaire made the second trip to California to
    obtain two pounds of methamphetamine for Lora-Andres. On March 3, 2013, Pineda
    contacted Special Agent Warkenthien and mentioned that he was en route to
    California to obtain methamphetamine. Pineda’s trip occurred without Special Agent
    Warkenthien’s permission or supervision, though Pineda updated him after the fact.
    After coordinating with Lora-Andres and obtaining approximately two pounds of
    methamphetamine, Pineda and LeClaire distributed small quantities while en route
    back to South Dakota and without Special Agent Warkenthien’s knowledge. When
    Pineda and LeClaire neared Sioux Falls, law enforcement stopped the vehicle and
    seized the methamphetamine. Afterwards, law enforcement officials gave Pineda and
    LeClaire devices to record telephone conversations with Lora-Andres. Pineda and
    LeClaire then recorded conversations with Lora-Andres at the direction of law
    enforcement. The recordings were made while Lora-Andres was in California and
    without a warrant or his knowledge or consent. The recordings included
    incriminating conversations about the methamphetamine operation.
           Lora-Andres moved to suppress the recordings, claiming they were not
    authorized under federal law. The district court denied Lora-Andres’s motion as well
    as his request that the jury be instructed regarding his potential mandatory minimum
    sentence. The jury rendered a guilty verdict on both counts, and at sentencing, the
    district court found that Lora-Andres’s role in the conspiracy justified a two-level
    enhancement pursuant to United States Sentencing Guidelines Manual (“U.S.S.G.”)
    § 3B1.1(c) for his role as a manager or supervisor in the methamphetamine
    conspiracy. With an advisory sentencing guidelines range of 188 to 235 months, the
    district court sentenced him to 188 months’ imprisonment for the methamphetamine
    conspiracy. The court also imposed a term of 48 months’ imprisonment, to run
    concurrently with the 188-month sentence, for using a communication facility to
    further a controlled substance conspiracy.
           Lora-Andres first argues that the district court erred in denying his motion to
    suppress because the Wiretap Act, 18 U.S.C. §§ 2510-22, did not permit Pineda and
    LeClaire to record the phone conversations. See id. at § 2515 (“Whenever any wire
    or oral communication has been intercepted, no part of the contents of such
    communication and no evidence derived therefrom may be received . . . in or before
    any court . . . .”). “When reviewing the denial of a motion to suppress, we review the
    district court’s legal conclusions de novo but its factual findings for clear error.”
    United States v. Burston, 
    806 F.3d 1123
    , 1126 (8th Cir. 2015).
           The Wiretap Act generally forbids the interception and recording of phone
    calls, though it allows “a person acting under color of law to intercept a . . .
    communication, where such person is a party to the communication.” 18 U.S.C.
    § 2511(2)(c). Because Pineda and LeClaire intercepted and recorded their phone
    calls with Lora-Andres, the dispositive question concerning admissibility is whether
    they were “acting under color of law” when doing so. Lora-Andres contends that
    they were not because Special Agent Warkenthien was not directly supervising
    Pineda and LeClaire when they traveled to California and did not formally register
    them as confidential informants. More importantly, Pineda and LeClaire misled law
    enforcement officials when they distributed methamphetamine while giving the
    appearance of cooperation. Thus, Lora-Andres asserts that they could not have been
    “acting under color of law” when recording their conversations with him.
           Lora-Andres’s argument fails because it elides a distinction between the acts
    preceding the phone calls and the actual recording of the phone calls. Even though
    Pineda and LeClaire were not registered as confidential informants, were not under
    direct law enforcement supervision during their trip to California, and were illegally
    selling drugs, they recorded the phone calls with Lora-Andres after these events,
    when they were acting at the direction of law enforcement. They were therefore
    “acting under color of law” when recording the phone calls, and thus, the recordings
    were legal under § 2511(2)(c).2 See United States v. Rich, 
    518 F.2d 980
    , 985 (8th Cir.
    1975) (holding that when a person recording a conversation “was acting at the
    direction of government investigators,” that person was “acting under color of law”).
    Accordingly, we affirm the district court’s denial of Lora-Andres’s motion to
          Lora-Andres next asserts that the district court abused its discretion when it
    refused to instruct the jury that Lora-Andres faced a ten-year mandatory minimum
    prison sentence if convicted of conspiracy to distribute 500 grams or more of
    methamphetamine. See United States v. Brewer, 
    624 F.3d 900
    , 907 (8th Cir. 2010).
            Lora-Andres argues that even if Pineda and LeClaire were “acting under color
    of law” pursuant to the Wiretap Act, California law still requires suppression. See
    Cal. Penal Code §§ 630-38 (making it a crime to record private conversations without
    the consent of all parties and permitting suppression of such recordings in criminal
    proceedings). However, “[w]e have consistently held that evidence obtained in
    violation of a state law is admissible in a federal criminal trial if the evidence was
    obtained without violating the Constitution or federal law.” United States v. Padilla-
    129 F.3d 457
    , 464 (8th Cir. 1997) (citation omitted).
    Lora-Andres contends that in order for the jury to fulfill its role as the community’s
    conscience, it should be allowed to hear the potential ramifications of a conviction.
    However, “[t]he district court is not required to instruct a jury about the sentencing
    consequences of its verdict,” for doing so “invites them to ponder matters that are not
    within their province, distracts them from their factfinding responsibilities, and
    creates a strong possibility of confusion.” Id. (quoting Shannon v. United States, 
    512 U.S. 573
    , 575, 579 (1994)). As a result, the district court did not abuse its discretion
    by refusing to instruct the jury about the punishment Lora-Andres faced if convicted.
           Finally, Lora-Andres claims that the district court improperly applied a two-
    level enhancement for being a manager or supervisor of criminal activity. See
    U.S.S.G. § 3B1.1(c); id. at cmt. n.2 (“To qualify for an adjustment under this section,
    the defendant must have been the organizer, leader, manager, or supervisor of one or
    more other participants.”). “The government bears the burden of proving by a
    preponderance of the evidence that the aggravating role enhancement is warranted,”
    United States v. Gaines, 
    639 F.3d 423
    , 427 (8th Cir. 2011), and “[t]he district court’s
    factual findings, including its determination of a defendant’s role in the offense, are
    reviewed for clear error, while its application of the guidelines to the facts is reviewed
    de novo,” id. at 427-28 (quotation omitted).
            We conclude the district court did not clearly err in finding that Lora-Andres
    played a managerial or supervisory role in the methamphetamine operation. Pfeffer
    testified that she and Tovar obtained approximately forty ounces of methamphetamine
    from Lora-Andres over the course of numerous meetings. She also testified that
    Lora-Andres fronted the methamphetamine, knew they were reselling it, and required
    them to repay him. Thus, contrary to Lora-Andres’s allegations, Pfeffer and Tovar
    were not merely end users or customers but participants in the conspiracy. See United
    States v. Garcia-Hernandez, 
    530 F.3d 657
    , 665 (8th Cir. 2008) (finding U.S.S.G.
    § 3B1.1 enhancement was warranted because the defendant fronted participants
          Furthermore, Pineda testified that Lora-Andres recruited him into the drug
    conspiracy. He and LeClaire testified Lora-Andres fronted them large quantities of
    methamphetamine to sell on his behalf. Additionally, Lora-Andres obtained multiple
    pounds of methamphetamine in California and twice directed Pineda to transport the
    drugs back to South Dakota. These facts are sufficient to establish that Lora-Andres
    acted as manager or supervisor of criminal activity. See U.S.S.G. § 3B1.1 cmt. n.4
    (“Factors the court should consider include the exercise of decision making authority,
    the nature of participation in the commission of the offense, the recruitment of
    accomplices, . . . the degree of participation in planning or organizing the offense, the
    nature and scope of the illegal activity, and the degree of control and authority
    exercised over others.”).3 Thus, the district court did not clearly err in applying a
    two-level enhancement pursuant to U.S.S.G. § 3B1.1(c).
          For the foregoing reasons, the judgment of the district court is affirmed.
            Lora-Andres claims Pineda and LeClaire cannot simultaneously qualify as
    both confidential informants and “participants” under U.S.S.G. § 3B1.1. See
    U.S.S.G. § 3B1.1 cmt. n.1 (“A person who is not criminally responsible for the
    commission of the offense (e.g., an undercover law enforcement officer) is not a
    participant.”). However, Pineda and LeClaire were extensive participants in the
    methamphetamine operation long before they began working with law enforcement,
    and any previous cooperation between Pineda and Special Agent Warkenthien dealt
    with matters unrelated to Lora-Andres. See United States v. Capps, 
    952 F.2d 1026
    1028 n.2 (8th Cir. 1991) (rejecting as “frivolous” defendant’s argument that a party
    “may not be counted as a participant because he was an informer during part of the
    conspiracy period”); United States v. Dyer, 
    910 F.2d 530
    , 533 (8th Cir. 1990) (finding
    a government informant qualified as a participant because he was involved in the
    drug conspiracy before working with the government). Therefore, Pineda and
    LeClaire are “participants” for U.S.S.G. § 3B1.1 purposes.