U.S. v. Lopez-Arce, PLAINTIFF-APPELLEE

• Decision Date: 20 August 2001
• Docket Number: DEFENDANT-APPELLANT,LOPEZ-PERE,No. 01-1426,ALSO,PLAINTIFF-APPELLEE,LOPEZ-ARC,01-1426
• Citation: 267 F.3d 775
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA,, v. EUSEBIOKNOWN AS EDUARDO DE JESUS ORZUNA, ALSO KNOWN AS EUSEBIO Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 775

267 F.3d 775 (8th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. EUSEBIO LOPEZ-ARCE, ALSO KNOWN AS EDUARDO DE JESUS ORZUNA, ALSO KNOWN AS EUSEBIO LOPEZ-PEREZ, DEFENDANT-APPELLANT.

No. 01-1426

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: August 20, 2001

Filed: October 3, 2001

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

[Copyrighted Material Omitted] Before Bye, Lay, and John R. Gibson, Circuit Judges.

Lay, Circuit Judge.

Eusebio Lopez-Arce¹ was convicted of one count of conspiracy to distribute cocaine and methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1); one count of distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; one count of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). The district court² sentenced Lopez-Arce to 235 months imprisonment and five years supervised release. On appeal, Lopez-Arce contends (1) the district court erred in admitting evidence seized during the arrest of an unindicted co-conspirator who was tried in a separate proceeding because the Government failed to prove the existence of the overall conspiracy, (2) this resulted in a variance between the conspiracy charged and the proof offered at trial which substantially affected his rights, and (3) the district court erred in calculating his criminal history score and in denying his request for a minimal role reduction. We affirm.

I. Facts

This appeal arises from seven undercover drug purchases from Jose Belen Payan-Valencia beginning in August of 1999 and culminating in a "buy bust" on January 20, 2000. The first five purchases involved cocaine, while the final two purchases involved methamphetamine. Payan-Valencia was followed to the apartment of Eusebio Lopez-Arce prior to one of the cocaine purchases, and prior to both methamphetamine purchases. Jose Belen Payan-Valencia, Analberto Lopez-Arce,³ and Eusebio Lopez-Arce were subsequently charged (along with others known and unknown) with conspiracy to distribute cocaine and methamphetamine. Payan-Valencia and Analberto Lopez-Arce pled guilty to the charges filed against them.

Between August 10, 1999 and January 20, 2000, Payan-Valencia made sales of cocaine and methamphetamine to an undercover officer, Deputy Craig Martin, of the Hennepin County Sheriff's Office. During that period, law enforcement officers were attempting to identify the source of the drugs. Each time that Deputy Martin would place an order for cocaine or methamphetamine other officers would follow Payan-Valencia to determine where he was obtaining the illegal drugs.

On August 10, 1999, after Deputy Martin had ordered two ounces of cocaine from Payan-Valencia, surveillance officers followed Payan-Valencia to an apartment at 280 West Winifred in Saint Paul, Minnesota. Eusebio Lopez-Arce lived at 280 West Winifred, Apartment Four. Payan-Valencia was then observed leaving 280 West Winifred, returning to his own apartment in Bloomington, Minnesota, and subsequently making the sale to Deputy Martin.

On August 17, 1999, prior to the second transaction, surveillance officers followed Payan-Valencia to 1377 Edgerton Street in Saint Paul. This was the address of Analberto Lopez-Arce. When Payan-Valencia left the Edgerton residence, he was with another Hispanic male who left in a green Crown Victoria, a vehicle driven by Isidro Pacheco-Sanchez. The Crown Victoria was followed to 280 West Winifred. Payan-Valencia was then followed to the location where he again sold Deputy Martin two ounces of cocaine.

On August 25, 1999, prior to the third transaction between Payan-Valencia and Deputy Martin, surveillance officers again followed Payan-Valencia to 1377 Edgerton Street in Saint Paul. Just prior to Payan-Valencia's arrival, a blue Nissan Sentra registered under an alias used by Eusebio Lopez-Arce arrived, having been followed from his residence at 280 West Winifred. After approximately forty minutes, Payan-Valencia left Analberto Lopez-Arce's residence, returned to his own apartment, and then met with Deputy Martin and sold him four ounces of cocaine. It was during this exchange that Deputy Martin first discussed possible future transactions involving methamphetamine with Payan-Valencia.

On September 8, 1999, Deputy Martin purchased six ounces of cocaine from Payan-Valencia. Again, Payan-Valencia was followed by surveillance officers to Analberto Lopez-Arce's Edgerton Street residence prior to the sale. The final cocaine deal took place on September 21, 1999. Deputy Martin again purchased six ounces of cocaine from Payan-Valencia.

During the September 21 meeting between Payan-Valencia and Deputy Martin, Payan-Valencia explained that there might be some problems getting the methamphetamine as they had discussed previously because "another boy who gets [methamphetamine] from my friend" had been arrested a few days earlier. Payan-Valencia told Deputy Martin that the individual to whom he referred had been caught "on the street" with "twenty-five ounces or something."

Five days earlier, in Saint Paul, Isidro Pacheco-Sanchez had been arrested after an investigation by the Ramsey County Sheriff's Office. After an informant had ordered methamphetamine, a surveillance officer followed Pacheco-Sanchez to Eusebio Lopez-Arce's residence at 280 West Winifred. He entered the apartment building without a coat, and returned to his car ten minutes later wearing a coat and apparently trying to hide something underneath. Pacheco-Sanchez was stopped shortly after leaving the building at 280 West Winifred and approximately twenty ounces of methamphetamine were seized from the green Crown Victoria he was driving.

The next transaction between Payan-Valencia and Deputy Martin did not occur until January 2000. Although they had some discussions, Payan-Valencia said that he was not able to locate his source. On January 18, 2000, prior to the sale of one-half pound of methamphetamine, surveillance officers followed Payan-Valencia to Eusebio Lopez-Arce's residence at 280 West Winifred. At the sale, Deputy Martin payed Payan-Valencia with $5500 in photocopied buy money. After the sale was completed, surveillance officers followed Payan-Valencia back to Eusebio Lopez-Arce's residence at 280 West Winifred. Payan-Valencia waited until Eusebio arrived, went inside, left a few minutes later, and returned to his apartment in Bloomington.

Prior to the final sale on January 20, 2000, which was for one and one-half pounds of methamphetamine, surveillance officers followed Payan-Valencia to Eusebio Lopez-Arce's residence at 280 West Winifred. Payan-Valencia went inside and shortly thereafter Analberto Lopez-Arce arrived and went inside. Payan-Valencia and Analberto Lopez-Arce left Eusebio Lopez-Arce's residence together. Analberto then drove to an apartment complex in Saint Paul, entered, and then left and drove back to meet Payan-Valencia in a parking lot. Payan-Valencia subsequently went to meet with Deputy Martin. Payan-Valencia entered Deputy Martin's vehicle and showed him the methamphetamine. Deputy Martin then gave the arrest signal and Payan-Valencia was placed under arrest.

At approximately the same time, Eusebio and Analberto Lopez-Arce were arrested together at a gas station in Saint Paul after leaving Eusebio Lopez-Arce's residence. A search of Eusebio Lopez-Arce incident to his arrest found that $180 of the $482 he had in his wallet matched the photocopied buy money from the methamphetamine transaction that had taken place on January 18, 2000. Analberto Lopez-Arce had no money matching the buy money.

Later that day, a search warrant was executed at Eusebio Lopez-Arce's residence at 280 West Winifred, Apartment Four, Saint Paul, Minnesota. In the master bedroom, two individually-wrapped, one-ounce packages of cocaine were found in a baby's crib. In the same bedroom, several envelopes containing $9000 in cash were discovered. Of that total, $1980 matched the photocopied buy money given to Payan-Valencia in exchange for the one-half pound of methamphetamine two days earlier.

Eusebio Lopez-Arce, Analberto Lopez-Arce, and Jose Belen Payan-Valencia were subsequently charged in a nine-count indictment. Eusebio Lopez-Arce was charged with four counts: (1) conspiracy, (2) distribution of methamphetamine, (3) possession with intent to distribute methamphetamine, and (4) possession with intent to distribute cocaine. Analberto Lopez-Arce and Jose Belen Payan-Valencia pled guilty to the charges brought against them. On June 29, 2000, after a three day trial, a jury found Eusebio Lopez-Arce guilty on all four counts. He was sentenced on February 7, 2001. His total offense level was thirty-four and his criminal history category was V. Accordingly, he was sentenced to 235 months imprisonment, the lowest period available within the guideline sentencing range.

II. Discussion

A. Introduction of the Evidence Obtained in the Arrest of Isidro Pacheco-Sanchez

Defendant first argues that the district court erred by admitting into evidence the approximately twenty ounces of methamphetamine seized in connection with the September 16, 1999, arrest of Isidro Pacheco-Sanchez. Eusebio Lopez-Arce contends that the Government did not prove that Pacheco-Sanchez was part of the overall conspiracy alleged in count one of the indictment, and therefore the evidence was inadmissible at trial. The Government counters that the district court did not abuse its discretion in admitting the evidence because it would be admissible either as part of the overall conspiracy charged, or alternatively under Federal Rule of Evidence 404(b). We review such evidentiary rulings for abuse of discretion. United States v. Forcelle, 86 F.3d 838, 841 (8th Cir. 1996)....