United States v. Reyes Manuel Ayon , 166 F. App'x 894 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2714
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of Minnesota.
*
Reyes Manuel Ayon, * [UNPUBLISHED]
*
Appellant. *
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Submitted: February 13, 2006
Filed: February 17, 2006
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Before WOLLMAN, FAGG, and ARNOLD, Circuit Judges.
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PER CURIAM.
Reyes Manuel Ayon drove a truck containing marijuana and amphetamine to
a drug deal with an undercover agent. The exchange was videotaped by law
enforcement. Ayon admitted his role in the marijuana deal, but maintained he did not
know about the amphetamine. A jury convicted Ayon of conspiracy to distribute and
possess with intent to distribute at least 150 pounds of marijuana, conspiracy to
distribute and possess with intent to distribute at least at least 500 grams of
amphetamine, aiding and abetting possession with intent to distribute marijuana, and
aiding and abetting possession with intent to distribute amphetamine. The district
court* sentenced Ayon to ninety-six months in prison, in the middle of the advisory
Guidelines range.
On appeal, Ayon concedes the evidence was sufficient to support his
convictions on the marijuana counts, but argues the evidence was insufficient to
support his convictions on the amphetamine counts. Viewing the evidence in the
light most favorable to the verdict, we conclude a reasonable jury could find Ayon
guilty beyond a reasonable doubt. See United States v. McKay. 431 F.3d 1085, 1094
(8th Cir. 2005). As the district court instructed the jury, the Government was only
required to prove Ayon knowingly possessed a controlled substance, not that he
knew he possessed amphetamine. United States v. Sheppard, 219 F.3d 766, 769 (8th
Cir. 2000); see also United States v. Hussein, 351 F.3d 9, 18 (1st Cir. 2003)
(collecting cases). Contrary to Ayon’s assertion, United States v. Ausler, 395 F.3d
918, 920 (8th Cir. 2005), does not hold otherwise. In Ausler, we noted that although
the Government need not prove a defendant possessed a particular drug, the
Government failed to object to the court’s instruction that the jury had to find Ausler
possessed crack. Id. Thus, the instruction became the law of the case. Id.In Ayon’s case, the court did not instruct the jury that it had to find Ayon
possessed amphetamine. In any event, the evidence at trial established Ayon knew
about the amphetamine contained in the hidden compartment with the bulk of the
marijuana. The videotape showed Ayon stood guard while coconspirators unloaded
the hidden compartment, Ayon saw the amphetamine, the deal was to include
methamphetamine, and Ayon was within earshot when the undercover officer asked
about the “CR,” a Spanish slang term for amphetamine or methamphetamine. Ayon
gave no indication that he did not know about the amphetamine, and played his part
in concluding the deal.
*
The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota.
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Ayon also argues we should remand for resentencing because the district court
committed error in setting the sentence as if the amphetamine was an equivalent
amount of methamphetamine. The district court simply followed an applicable
Guidelines amendment setting the same marijuana drug equivalency computation for
amphetamine as methamphetamine. The Sentencing Commission adopted the
amendment in response to Congress’s directive to increase the penalties for
amphetamine to make them comparable to methamphetamine. Contrary to Ayon’s
assertion, the Sentencing Commission acted within its authority in adopting the
amendment.
We thus affirm Ayon’s conviction and sentence.
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