U.S. v. Santistevan, s. 93-4179

• Decision Date: 31 October 1994
• Docket Number: Nos. 93-4179,93-4196,s. 93-4179
• Citation: 39 F.3d 250
• Parties: UNITED STATES of America, Plaintiff-Appellee and Cross-Appellant, v. Daniel SANTISTEVAN, Defendant-Appellant and Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 250

39 F.3d 250

UNITED STATES of America, Plaintiff-Appellee and Cross-Appellant, v. Daniel SANTISTEVAN, Defendant-Appellant and Cross-Appellee.

Nos. 93-4179, 93-4196.

United States Court of Appeals, Tenth Circuit.

Oct. 31, 1994.

David J. Schwendiman (Scott M. Matheson, Jr., U.S. Atty., with him on the brief), First Asst. U.S. Atty., Salt Lake City, UT, for plaintiff-appellee and cross-appellant.

Joseph C. Fratto, Jr., Salt Lake City, UT, for defendant-appellant and cross-appellee.

Before ANDERSON, McKAY and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Daniel Santistevan was charged in an eight count redacted superseding indictment with distribution of cocaine and marijuana in violation of 21 U.S.C. Sec. 841(a)(1). After a jury trial, he was convicted on seven of those eight counts. The district court, however, granted Mr. Santistevan's post-trial motion for judgment of acquittal on three of the seven counts. He was thereafter sentenced to a term of seventy-eight months incarceration and five years of supervised release.

The single issue presented in his appeal is whether the district court erred in denying his request for a base offense level reduction pursuant to U.S.S.G. Sec. 3B1.2 because he was either a minimal or a minor participant. Case No. 93-4179. The United States cross-appealed, alleging the district court erred in granting the post-trial motion for judgment of acquittal with respect to two of the three counts. ¹ Case No. 93-4196. We have jurisdiction over Mr. Santistevan's appeal pursuant 28 U.S.C. Sec. 1291, and our jurisdiction over the United States' cross-appeal lies under 18 U.S.C. Sec. 3731 ² and 28 U.S.C. Sec. 1291. We affirm the district court's denial of the request for a base offense level reduction, and while we affirm the district court's order dismissing counts one and two, we do so for reasons other than those given by the district court.

BACKGROUND

On July 8, 1992, a federal grand jury for the District of Utah indicted Daniel Santistevan and four other individuals on nineteen drug-related counts, including distribution of cocaine and marijuana in violation of 21 U.S.C. Sec. 841(a)(1). Seven of those nineteen counts implicated Mr. Santistevan. Three of Mr. Santistevan's co-defendants subsequently pled guilty, and the case against the fourth individual was dismissed on motion of the government. On March 18, 1993, Mr. Santistevan was charged in a superseding indictment The eight counts in the redacted superseding indictment alleged that between November 1989 and May 1992, Mr. Santistevan distributed controlled substances to Frank Mares (counts one through seven) and David Gallegos (count eight). Counts one and two are of particular importance as they form the basis for the United States' cross-appeal. The government's theory as to counts one and two ⁴ was that in November 1989, and then again in December 1989, Mr. Santistevan, with the assistance of his girlfriend Edith Bridgeforth, contacted Mr. Mares, a drug dealer, to see if he was interested in purchasing cocaine from the defendant. The government further alleged Mr. Mares agreed, for monetary compensation, to assist Mr. Santistevan in executing two "fake buys." These fake buys were intended by Mr. Santistevan as a means of regaining the trust of Manuel Medina, a known drug dealer, whom the defendant had worked with in the past and who allegedly supplied Mr. Santistevan with the cocaine to be sold. Mr. Santistevan had lost the trust of Mr. Medina because an earlier drug deal he was involved in had gone "sour," and he wanted to regain Mr. Medina's confidence by showing him he was capable of "turn[ing] it over." The crux of the scheme was the defendant would provide Mr. Mares with money to "purchase" cocaine from the defendant. After the "deals" were completed, however, Mr. Santistevan would get both the cocaine and the money back. As indicated, these "fake buys" were designed to impress Mr. Medina, although the record is unclear as to how exactly this goal was to be accomplished.

with an eighth count of distribution of cocaine in violation of Sec. 841(a)(1). ³

Counts three, six and seven charged Mr. Santistevan with "real" drug transactions with Mr. Mares, all of which took place at Ms. Bridgeforth's apartment in Salt Lake City on December 20, 1989, February 9, 1990, and February 25, 1990, respectively. Counts four and five involved an incident where Ms. Bridgeforth observed packages, which Mr. Santistevan represented to be cocaine and marijuana, being transported to another location to facilitate a distribution. Finally, count eight involved an alleged sale of cocaine from Mr. Santistevan to Mr. Gallegos in May 1992.

A three-day jury trial commenced on May 26, 1993. At the close of the government's case-in-chief, the district court granted the defendant's motion for judgment of acquittal, and dismissed count four of the indictment due to insufficient evidence. The district court denied the motion with respect to counts one, two and five, and the defendant was thereafter convicted on the seven remaining counts. On a post-trial motion for judgment of acquittal, however, the district court granted the motion as to counts one, two and five. The ruling as to count five is not at issue. With respect to counts one and two, the district court concluded those two transactions were "mock" transactions undertaken without a "bad purpose," and therefore did not constitute a "distribution" of a controlled substance under Sec. 841(a)(1).

DISCUSSION

I. Defendant's Appeal

Mr. Santistevan argues the district court erred in denying his request for a base offense level reduction under Sec. 3B1.2 of the Guidelines on the ground he was either a minimal or a minor participant.

"A trial court's findings concerning a defendant's role in a particular offense are treated by an appellate court as factual findings, which are subject to deferential review under the clearly erroneous standard." United States v. Chavez-Palacios, 30 F.3d 1290, 1295 (10th Cir.1994) (citing United States v. Phelps, 17 F.3d 1334, 1337 (10th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 135, 130 L.Ed.2d 77 (1994); United States v. Garcia, 987 F.2d 1459, 1461 (10th Cir.1993)). We will not disturb a district court's finding of fact unless it is " 'without factual support in the record, or if after reviewing the evidence Section 3B1.2 vests the district court with discretion to grant a base offense level reduction if it finds a defendant is less culpable relative to other participants in a given offense. See United States v. Rangel-Arreola, 991 F.2d 1519, 1524 (10th Cir.1993) (citing United States v. Arredondo-Santos, 911 F.2d 424, 426 (10th Cir.1990)). The commentary to the Guidelines, which is authoritative unless it conflicts with federal law, see Chavez-Palacios, 30 F.3d at 1295 (citing Stinson v. United States, --- U.S. ----, ---- - ----, 113 S.Ct. 1913, 1918-19, 123 L.Ed.2d 598 (1993)), states the four-level decrease for "minimal" participation "will be used infrequently" and should be reserved for "defendants who are plainly among the least culpable of those involved in the conduct of a group." U.S.S.G. Sec. 3B1.2, comment. (nn. 1-2). The two-level decrease for "minor" participation applies to individuals who are "less culpable than most other participants, but whose role could not be described as minimal." Id. (n. 3). Finally, the Guidelines permit a three-level decrease for an individual whose culpability is somewhere between that of either a minimal or a minor participant.

we are left with the definite and firm conviction that a mistake has been made.' " Phelps, 17 F.3d at 1337 (quoting United States v. Beaulieu, 893 F.2d 1177, 1182 (10th Cir.), cert. denied, 497 U.S. 1038, 110 S.Ct. 3302, 111 L.Ed.2d 811 (1990)); accord United States v. Telman, 28 F.3d 94, 97 (10th Cir.1994). It is the defendant's burden to establish, by a preponderance of the evidence, his entitlement to an offense level reduction under Sec. 3B1.2. See Telman, 28 F.3d at 97 (citing United States v. Occhipinti, 998 F.2d 791, 802 (10th Cir.1993)); United States v. Pedraza, 27 F.3d 1515, 1530 (10th Cir.1994) (citing United States v. Maldonado-Campos, 920 F.2d 714, 717 (10th Cir.1990)), cert. denied, --- U.S. ----, 115 S.Ct. 347, 130 L.Ed.2d 303 (1994).

While Sec. 3B1.2 vests a district court with discretion to grant a base offense level reduction, Sec. 3B1.1 permits the district court to grant a base offense level increase from two to four levels if it finds by a preponderance of the evidence a defendant was an organizer, leader, manager or supervisor in a given offense. See U.S.S.G. Sec. 3B1.1; Pedraza, 27 F.3d at 1530 (discussing Sec. 3B1.1).

In the present case, the government requested a base offense level increase while the defendant requested a base offense level decrease. The district court declined both requests, concluding the evidence did not warrant an adjustment either way. In United States v. Garcia, 987 F.2d 1459 (10th Cir.1993), we upheld the sentencing court's refusal to grant a base offense level increase or a decrease where the defendant was " 'simply in the middle with a lot of other people.' " Id. at 1461 (quoting the record). The trial court made a similar finding in this case and we find no error.

Mr. Santistevan's conduct involved multiple distributions of controlled substances to Mr. Mares and Mr. Gallegos, a factor weighing against an offense level reduction under Sec. 3B1.2. See United States v. Montoya, 24 F.3d 1248, 1249 (10th Cir.1994) (finding defendant's involvement in "more than" a single drug transaction placed her beyond the scope of Sec. 3B1.2). Moreover, even if we accepted Mr. Santistevan's argument that he was only a "middle man" who simply facilitated drug sales from Medina to third parties, our precedents uniformly reject the argument that this fact alone compels the district court to exercise its discretion and grant a base offense level...