U.S. v. Bahena, SANCHEZ-BARRO

Decision Date13 March 2000
Docket NumberSANCHEZ-BARRO,Nos. 99-2473M,99-2731M,99-2905MN,ALSO,99-2653M,s. 99-2473M
Citation223 F.3d 797
Parties(8th Cir. 2000) UNITED STATES OF AMERICA, APPELLEE, v. ARTURO BAHENA, ALSO KNOWN AS HUGO, APPELLANT. UNITED STATES OF AMERICA, APPELLEE, v. RODOLFO IBARRA, ALSO KNOWN AS RUDY, APPELLANT. UNITED STATES OF AMERICA, APPELLEE, v. JUAN VILLANUEVA MONROY, APPELLANT, UNITED STATES OF AMERICA, APPELLEE, v. ALFREDO PRIETO, ALSO KNOWN AS NASARIOKNOWN AS MUDO, APPELLANT. Submitted:
CourtU.S. Court of Appeals — Eighth Circuit

On Appeal from the United States District Court for the District of Minnesota. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Richard S. Arnold, Beam, and Murphy, Circuit Judges.

Richard S. Arnold, Circuit Judge.

This is a drug case. Four defendants appeal their convictions for conspiracy involving methamphetamine. The defendants are Arturo Bahena, Rodolfo Ibarra, Alfredo Prieto, and Juan Villanueva Monroy. We affirm the convictions and the sentences.

I. BACKGROUND

A brief overview of the case will be important for understanding the contentions of the various appellants. The case is about a drug organization that imported large quantities of methamphetamine from California to Minnesota between December of 1997 and June of 1998. The investigation began with Rodolfo Ibarra, who was obtaining methamphetamine from California for distribution in Minnesota. Ibarra's main distributor was Arturo Bahena. The latter was also purchasing drugs, and in a more significant amount, from Juan Villanueva Monroy and his brother, Jose Luis Villanueva. Gradually, Monroy and Villanueva became Bahena's major source. Monroy and Villanueva were assisted by Alfredo Prieto. Monroy's girlfriend, Diane Zuniga, was paid for receiving packages that were sent through the mail. Sonia Barber, a friend of Monroy, was also receiving drugs on his behalf. Diane Zuniga's cousin, Martina Zuniga, was recruited to receive packages of drugs for Monroy. Stephen Tiarks and Ms. Barber played much the same role. Another cousin of Diane Zuniga, Maria Avalos, was also recruited to receive packages of drugs. The ultimate source, or at least Monroy's and Villanueva's source, appears to have been two men known as Nana and Lucho, who lived in Mexico. Nana and Lucho have not been apprehended or prosecuted.

Police began to seize packages containing drugs that had been mailed to Minnesota. Prieto decided that drugs were no longer going to be sent through the mail. Accordingly, it was decided that cars loaded with methamphetamine would be driven from California to Minnesota. In mid-May 1998, Mr. Tiarks agreed to drive a load of methamphetamine in his pickup truck. A large group, including Villanueva, Prieto, Monroy's nephew, Eduard Costillo, Tiarks, and Barber drove to California in two cars, Tiarks's pickup truck and a Suburban. On the way, the group left Villanueva at the Denver Airport, so he could fly ahead to California and get the load of methamphetamine ready. When the Colorado-Utah border was reached, the Suburban broke down. The trip continued in the pickup. When the group arrived in California, they learned that Villanueva had been arrested in Denver. Ultimately, Villanueva was sent back to Mexico. Tiarks, Barber, and others flew back to Minnesota, leaving the pickup truck in California to be loaded with methamphetamine. Prieto stayed in California to organize the shipment. Costillo stayed with him. There were difficulties in organizing the shipment. At one point or another, both Monroy and Bahena offered to go out to California to drive the load back to Minnesota. Monroy assured Bahena, who was anxious to get drugs, that he would get all of the drugs that came from California. Finally, on June 8, 1998, the first load, containing 15 pounds of methamphetamine, was sent to Monroy by Prieto. This load arrived in Minnesota on June 12, and all of it went to Bahena for distribution. The day before, June 11, Tiarks had flown out to California to drive the second load, containing 35 pounds of methamphetamine, back to Minnesota. On June 14, the pickup truck was loaded, and Tiarks left California. He was expected to arrive in Minnesota early on the morning of June 16. That morning, at about 8:00 a.m., law-enforcement officers, who were expecting the shipment, arrested Tiarks and seized 35 pounds of methamphetamine from the tailgate of his pickup truck. This was the largest single seizure of methamphetamine in the history of Minnesota. Monroy, Prieto, Costillo, Zuniga and Ibarra, as well as others, were arrested.

By August of 1998, an indictment had been returned charging 16 defendants with conspiring to distribute methamphetamine, and to possess it with the intent to distribute, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). Before trial, 11 of these defendants, including Ibarra and Bahena, pleaded guilty. Two defendants were fugitives at the time of trial. Charges against one defendant were dismissed. Two defendants, Monroy and Prieto, pleaded not guilty and went to trial. They were both convicted by the jury.

II. ARTURO BAHENA

We discuss first the contentions made on appeal by defendant Arturo Bahena. This defendant was convicted on his plea of guilty to one count of conspiring to distribute methamphetamine, and to possess it with intent to distribute, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). Bahena's arguments concern the length of the sentence imposed on him. He was sentenced to 320 months in prison, or, to put it more comprehensibly, 26 years and 8 months. This sentence was the consequence of the District Court's finding that Mr. Bahena's total offense level was 39. This finding, when combined with his Criminal History Category of I, produced an imprisonment range of 262 to 327 months.

Mr. Bahena contends that the District Court erred in imposing his sentence in two respects: in setting the base offense level at 38 and in imposing a four-level enhancement for being the leader or organizer of a criminal activity involving five or more participants. (A base offense level of 38, plus the four-level enhancement for leadership in the offense, would produce a total offense level of 42, but this figure was reduced to 39 by the District Court's action in granting a three-level reduction for acceptance of responsibility.) The base offense level of 38 depends, in turn, on the weight of methamphetamine with which Mr. Bahena was involved. If the weight was more than 15 kilograms, as the District Court found, the total level of 39 is appropriate. Mr. Bahena contends that this finding was clearly erroneous, and that he should have been held responsible for the lesser amount of five to 15 kilograms. If this had been done, the base offense level would have declined to 36, and the total offense level, assuming no other changes, would have been 37, producing a sentencing range of 188 to 235 months.

Our scope of review is limited. We may reverse only if we find the District Court's finding clearly erroneous, or, to put it another way, only if we have a definite and firm conviction that the District Court was mistaken. We have no such conviction. The key to this issue is the attribution to Mr. Bahena by the District Court of a shipment of methamphetamine containing 15.9 kilograms. If this shipment is properly chargeable to the defendant, no other issues of fact need to be looked at. Defendant would, on account of this incident alone, reach the over-15-kilogram level. The shipment in question was seized on June 16, 1998, shortly after arriving in Minnesota by car. It is conceded that Mr. Bahena knew the shipment in question was coming. Bahena Sentencing Transcript 27, 39. In fact, at one point he offered to go out to California and get it himself. Id. at 36-38, citing Government Exhibits (GX) 120A, p. 2; 124A. Bahena contends that, although he may have known of the shipment, he should not be charged with its entire contents, because the shipment was to be divided among him and other participants in the conspiracy. The District Court found to the contrary.

In a clear and comprehensive sentencing memorandum, the Court quoted a taped conversation between Mr. Bahena and a co-defendant. In this conversation, Mr. Bahena is told that "as soon as they get here . . . all of them are yours." Addendum for the Appellant Bahena A9. "They" and "them" in this statement refer to quantities of methamphetamine, including the 15.9-kilogram shipment under discussion. See GX 118A, p. 3; VII Trial Tr. 101-05. Other quotations from taped conversations support this finding. Defendant, quoting still other portions of taped transcripts, argues that, in context, the conversations were misinterpreted by the District Court. But how to interpret the various conversations is an issue of fact, and we are not persuaded that the District Court clearly erred, if indeed it erred at all. We hold that the Court permissibly found that Bahena was personally involved with at least 15 kilograms of methamphetamine. This amount is therefore properly taken into account for sentencing purposes under U.S.S.G. § 1B1.3(a)(1)(A).

Mr. Bahena's other contention concerns the four-level enhancement for role in the offense. In their submissions to the District Court, both the defendant and the United States took the position that a three-level enhancement for being a manager or supervisor would be appropriate. The District Court, however, on the recommendation of the United States Probation Office, imposed a four-level enhancement for being a leader or organizer. See U.S.S.G. §§ 3B1.1(a), (b). The District Court reached this conclusion because, in its view, Mr. Bahena controlled the actions of two other defendants, his sister and his wife, supplied large quantities of drugs to two other co-defendants, was in complete control of the shipments of drugs that were destined for...

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