United States v. Efrain Orozco , 700 F.3d 1176 ( 2012 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-1170
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Efrain Orozco
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: September 21, 2012
Filed: December 3, 2012
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Before MELLOY, BEAM, and BENTON, Circuit Judges.
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MELLOY, Circuit Judge.
A jury convicted Defendant Efrain Orozco of two counts of possessing cocaine
with intent to deliver in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii)
(cocaine), and 841 (b)(1)(A)(iii) (cocaine base). The district court1 imposed a ten-
1
The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
year statutory-mandatory-minimum sentence on Count 2 (the count involving cocaine
base) and a concurrent 97-month sentence on Count 1. Orozco appeals, arguing via
counsel in his opening brief that evidence discovered in a vehicle search should have
been suppressed and that there was insufficient evidence to support his conviction.
He also argues via a pro-se motion for replacement counsel that he should have
received the benefit of the amended cocaine-base provisions in the Fair Sentencing
Act of 2010 (the "Act"), 124 Stat. 2372. The Act went into effect on August 3, 2010,
after Orozco committed his offense but prior to his sentencing.
We reject his arguments regarding the suppression issue and the sufficiency of
the evidence but remand to the district court to address the applicability of the Act
given the retroactivity of the Act as determined by the Supreme Court in Dorsey v.
United States, 567 U.S. ––––, 132 S. Ct. 2321 (2012). In addition, we deny the
motion for replacement counsel.
I.
Orozco and another driver were driving a commercial truck with an empty
flatbed trailer through Missouri. When Orozco was in a sleeping berth and the other
driver was operating the vehicle, a commercial vehicle officer ("officer") stopped the
truck. The parties agree that the initial stop was a permissible regulatory stop. The
officer questioned the driver and collected various materials for inspection, including
each man's license and log book as well as the truck's bill of lading.
Upon inspecting the materials, the officer noticed several inconsistencies. The
officer contacted the Missouri State Highway Patrol for assistance because the officer
found the inconsistencies suspicious and because troopers with the Missouri State
Highway Patrol possess greater investigatory authority than commercial vehicle
officers. When a trooper arrived, the trooper spoke briefly with the officer then asked
the other driver for permission to search the truck. The other driver granted
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permission without limitation, and he and Orozco exited the vehicle at the trooper's
request.
When searching the vehicle, the trooper noticed stripped screws on a light
cover, removed the screws, and discovered concealed bundles. While the trooper was
conducting the search, Orozco and the other driver fled on foot. The two men were
later found and arrested. A later, more thorough search revealed 62 cellophane-
wrapped bundles containing approximately $1.4 million (primarily in $20 bills), 2.8
kilograms of powder cocaine, and slightly over 55 grams of cocaine base.
Orozco moved to suppress the evidence seized from the truck. He conceded
the initial stop was permissible. He argued, however, that the purpose of the stop
shifted at some point from a permissible regulatory stop to an impermissible general
investigatory stop unsupported by adequate suspicion. A magistrate judge2 prepared
a report and recommendation denying the motion. In the report, the magistrate judge
found that the regulatory stop was permissible and that the other driver's consent to
search was valid. The report then stated that the officer worked on paperwork related
to the regulatory stop until such time that the trooper obtained consent such that the
stop was not elongated beyond the length of time associated with the permissible
regulatory purpose. Finally, the report stated that, even if the stop had been elongated
beyond the time necessary for the regulatory stop, reasonable articulable suspicion
existed based upon the inconsistencies in the paperwork and justified any purported
extension. The district court adopted the report in full.
A jury subsequently convicted Orozco, and the district court imposed the
sentence identified above. On appeal , Orozco argues that the suppression ruling was
2
The Honorable James C. England, United States Magistrate Judge for the
Western District of Missouri.
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incorrect, the evidence was insufficient to support his conviction, and the Court's
ruling in Dorsey entitles him to resentencing.
II.
We review the district court's denial of the suppression motion de novo and its
underlying factual determinations related to the suppression issue for clear error. See
United States v. Lomeli, 676 F.3d 734, 738 (8th Cir. 2012) (describing the "two-
pronged standard of review"). Because the initial stop and the later-acquired consent
were valid, Orozco cannot establish a Fourth Amendment violation in this case unless
the officer impermissibly extended the stop without reasonable articulable suspicion.
See United States v. Briasco, 640 F.3d 857, 859 (8th Cir. 2011) ("To delay a vehicle's
occupants after an initial traffic stop has been completed, there must be particularized,
objective facts which, taken together with rational inferences from those facts,
reasonably warrant suspicion that a crime is being committed." (internal quotation
marks omitted)). Orozco does not point to any evidence suggesting that, before the
other driver gave valid consent to the trooper, the officer extended the stop beyond
that time necessary for the regulatory stop. The magistrate judge determined that the
officer was working on paperwork related to the initial stop when waiting for the
trooper to arrive, and Orozco does not challenge this finding. As such, the entire stop
preceding the grant of consent was constitutionally reasonable, and we need not
address the district court's alternative holding that the document discrepancies gave
rise to reasonable suspicion.
Orozco's sufficiency-of-the-evidence argument is similarly without merit.
Viewing the evidence in the light most favorable to the verdict and drawing all
reasonable inferences in the government's favor, we must affirm unless we conclude
that "no reasonable jury could have found guilt beyond a reasonable doubt." United
States v. Herbst, 666 F.3d 504, 510 (8th Cir. 2012). In conducting this analysis, the
jury's credibility assessments are "virtually unassailable." United States v. Varner,
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678 F.3d 653, 657 (8th Cir. 2012). Orozco focuses his argument upon the issues of
constructive possession and intent to distribute.
At trial, an expert testified that it was extremely unlikely that such a large
quantity of money and drugs would be placed in a vehicle without the occupant's
knowledge. See United States v. Serrano-Lopez, 366 F.3d 628, 635 (8th Cir. 2004)
("[I]t is unlikely that the owner would place approximately $130,000 worth of
cocaine in the hands of people who do not even know it is there."). Further, Orozco's
log book discrepancies, his flight from the scene, and the simple fact that he was a
driver of the vehicle, taken together, are more than sufficient to support the verdict.
See id. at 635 ("[P]resence in a vehicle containing contraband . . . and other evidence
can give rise to an inference of control."); United States v. Willis, 89 F.3d 1371, 1377
(8th Cir. 1996) (a vehicle occupant's status as a driver can show the dominion and
control necessary to establish constructive possession of hidden drugs); United States
v. Clark, 45 F.3d 1247, 1250 (8th Cir. 1995) (holding it is permissible to instruct jury
that "flight may evidence consciousness of guilt"). Although Orozco presents what
he characterizes as noninculpatory explanations for the log-book inconsistencies and
his flight, the jury rejected his arguments, and we may not second-guess the jury's
determinations. Similarly, he argues that the evidence of constructive possession
shows only that one of the drivers was in possession of the money and cocaine, not
that he—rather than the other driver—possessed the contraband. Again, the jury
rejected this argument. Finally, the large quantity of drugs and money are sufficient
to support an inference of intent to distribute. See Serrano-Lopez, 366 F.3d at 635("A large quantity of drugs . . . is sufficient evidence of . . . intent to distribute.").
II.
Orozco's argument concerning the Fair Sentencing Act, however, appears to
hold merit. The presentence investigation report (PSR) identified a drug quantity of
2.8 kilograms of cocaine for Count 1 and a drug quantity of approximately 55 grams
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of cocaine base for Count 2. Under the applicable mandatory minimum sentences in
place at the time Orozco committed the offenses these quantities resulted in a
mandatory minimum sentence of five years for Count 1, 21 U.S.C. § 841(b)(1)(B)(ii),
and ten years for Count 2, 21 U.S.C. § 841(b)(1)(A)(iii). The Act, however, raised
the threshold quantity of cocaine base for a ten-year statutory minimum sentence from
50 grams to 280 grams. A review of the sentencing transcript and PSR (which the
district court accepted in full) shows that the sentencing court found the relevant
quantity for Count 2 to be slightly over 55 grams of cocaine base. As such, the court
relied upon the ten-year statutory minimum for Count 2 and found it unnecessary to
address issues that could not affect the mandatory sentence.
No party raised the issue of the possible retroactive application of the Act at
Orozco's sentencing. Had they done so, our controlling precedent at the time would
have precluded its application. United States v. Sidney, 648 F.3d 904, 910 (8th Cir.
2011). The Supreme Court has since held that the Act applies to defendants who
committed their offense prior to the Act's effective date, but who were sentenced
later. See United States v. Davis, 690 F.3d 912, 928 (8th Cir. 2012) (recognizing
Dorsey's abrogation of Sidney). Given the drug quantities at issue, it appears Orozco
may be entitled to the benefit of the Act. Because he raised this issue in a pro-se
motion for replacement counsel, however, the issue is not fully developed.
Accordingly, we remand for resolution of this issue by the district court
III.
We affirm the judgment of conviction, but remand to the district court to
address the applicability of Dorsey and the possibility of resentencing. The district
court may also address any other sentencing issues that may now appear material in
the possible absence of the ten-year statutory minimum.
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