U.S. v. Montes-Medina

• Decision Date: 07 July 2009
• Docket Number: No. 08-2970.,No. 08-2940.,08-2940.,08-2970.
• Citation: 570 F.3d 1052
• Parties: UNITED STATES of America, Appellee, v. Ignacio MONTES-MEDINA, Appellant. United States of America, Appellee, v. Carlos A. Vega-Toscano, also known as Jose, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

570 F.3d 1052

UNITED STATES of America, Appellee, v. Ignacio MONTES-MEDINA, Appellant.

United States of America, Appellee, v. Carlos A. Vega-Toscano, also known as Jose, Appellant.

No. 08-2940.

No. 08-2970.

United States Court of Appeals, Eighth Circuit.

Submitted: April 17, 2009.

Filed: July 7, 2009.

Bassel El-Kasaby, argued, Omaha, NE, for appellant, Ignacio Montes-Medina.

Michael J. Tasset, argued, Oakland, NE, for appellant, Carlos A. Vega-Toscano.

Bruce Gillan, AUSA, argued, Lincoln, NE, for appellee.

Before LOKEN, Chief Judge, HANSEN and COLLOTON, Circuit Judges.

HANSEN, Circuit Judge.

Following an undercover narcotics investigation involving controlled purchases of methamphetamine, a six-count indictment charged Ignacio Montes-Medina (Montes-Medina) and Carlos A. Vega-Toscano (Vega-Toscano), together with two others, with various drug trafficking crimes. Vega-Toscano entered a guilty plea to one count of possession with intent to deliver methamphetamine, and a jury convicted Montes-Medina on one count of conspiracy to distribute methamphetamine and one count of possession with intent to distribute methamphetamine. The district court¹ sentenced both Vega-Toscano and Montes-Medina to 188 months of imprisonment. Vega-Toscano appeals his sentence, and Montes-Medina appeals the denial of his suppression motion, his convictions, and his sentence. We affirm.

I.

The evidence at Montes-Medina's trial demonstrated that in the fall of 2006, law enforcement agents used Sergio Zamarripa (Zamarripa) as a cooperating informant in controlled purchases of methamphetamine in Grand Island, Nebraska. In October 2006, Zamarripa purchased methamphetamine in a controlled buy from Ramon Schachta, who had initially purchased it by contacting Montes-Medina and taking delivery from Vega-Toscano. Zamarripa testified that he first met Montes-Medina in November 2006. By telephone, Zamarripa had arranged to meet Montes-Medina and Vega-Toscano at Zamarripa's house. Montes-Medina and Vega-Toscano arrived in a maroon truck, and Montes-Medina identified himself as the boss in their methamphetamine trade. Zamarripa told the two men that he wanted to work with them. Montes-Medina then gave Zamarripa a small amount of methamphetamine from his pocket as a sample and indicated that the price per ounce was $1,000. They exchanged telephone numbers, and Zamarripa later called and negotiated a deal with Montes-Medina to purchase one ounce of methamphetamine for $800 at the Five Points Car Wash in Grand Island. On December 12, 2006, Zamarripa, under law enforcement surveillance, went to the Five Points Car Wash for the negotiated transaction. Vega-Toscano arrived alone with the methamphetamine and fronted the drugs, allowing Zamarripa to pay later. Law enforcement officers then followed Vega-Toscano's vehicle, which parked at 229 Darr Street in Grand Island.

The following week, Zamarripa telephoned Montes-Medina to negotiate another transaction, and they agreed it would take place at the Capital Car Wash in Grand Island on December 19, 2006. Law enforcement officers fitted Zamarripa with a wire. He made a recorded call to Montes-Medina using the number Montes-Medina had given him. Law enforcement officers also simultaneously conducted surveillance at 229 Darr Street. There, they observed two people enter a maroon truck and drive off. Officers followed the truck, losing it once but relocating it at another residence, 415 East Hall, in Grand Island. The officers observed two adult males in the driveway enter the truck and drive toward Capital Car Wash, and Zamarripa identified them as Montes-Medina and Vega-Toscano. Vega-Toscano and Montes-Medina arrived at the car wash in the maroon truck, and both entered Zamarripa's vehicle to negotiate and carry out the deal. Montes-Medina instructed Vega-Toscano to retrieve the methamphetamine from the maroon truck, which he did, and Montes-Medina also gave Zamarripa a smaller quantity of methamphetamine of a different quality. A car wash employee then instructed them to leave.

Zamarripa again recorded a telephone conversation with both Montes-Medina and Vega-Toscano, arranging another controlled purchase. Zamarripa arranged to purchase a kilo of methamphetamine on December 27, 2006, at the Kohl's department store parking lot in Grand Island. Montes-Medina and Vega-Toscano were waiting there without the kilo (2.2 pounds) when Zamarripa arrived, but they promised Zamarripa they could get a half pound of methamphetamine in about 15 minutes, and Montes-Medina set the price at $7,500. They agreed to meet for this deal at another car wash on Locust Street, and Montes-Medina and Vega-Toscano left the parking lot in a green Toyota Celica. Prearranged surveillance units at Kohl's were reassigned. Investigator Pederson and Detective Witt drove to 415 East Hall Street where they observed the green Toyota Celica in the driveway. They waited for the two men to come out of the house and get into the vehicle, and they followed it to the car wash, where the passenger, Vega-Toscano, alighted and walked toward the car wash. Seeing something in his waistband, officers decided to arrest Vega-Toscano as he approached the car wash. During the pat-down, a package of 222.68 grams of methamphetamine fell from his pant leg; the weight being just shy of one-half pound.

Investigators Rick Conrad and Scott Javins were in a second surveillance unit sent to the car wash on December 27, 2006. They observed the passenger get out of the green Toyota and saw the driver of the car park approximately a block away from the car wash, exit the vehicle, and enter a residence. The owner of the residence opened the door to the officers and pointed out Montes-Medina on the couch. The officers found no drugs on his person, but he was in possession of the cell phone bearing the number that Zamarripa had been calling to arrange the purchases. They arrested Montes-Medina.

Following the arrests, Investigator Mark Dreher applied for and obtained a search warrant for the residence located at 415 East Hall, from which Montes-Medina and Vega-Toscano twice had been seen leaving prior to methamphetamine deals with Zamarripa. Investigator Dreher's affidavit indicated that a cooperating individual had purchased methamphetamine from two Hispanic males, that the affiant had prior knowledge of the two Hispanic males, that they went to this residence in a green Toyota Celica after making arrangements to sell the cooperating individual half a pound of methamphetamine, and that Investigator Jim Pederson had observed them exit the residence at 415 East Hall, leave in the green Toyota, and drive to the area of the car wash where they were arrested. Pursuant to the warrant, officers seized several small plastic bags containing a substance that proved to be methamphetamine in various quantities and purity levels.

Montes-Medina moved to suppress the evidence seized as a result of the search, challenging the affidavit and the finding of probable cause on the grounds that material omissions and a lack of specificity as to the cooperating individual's reliability rendered the warrant lacking in probable cause. The district court denied the motion to suppress. Vega-Toscano entered a guilty plea to Count 5, charging possession with intent to deliver 50 grams or more of methamphetamine.² See 18 U.S.C. § 2; 21 U.S.C. § 841(a)(1). Montes-Medina proceeded to trial, after which the jury convicted him on Count 1 of conspiracy to distribute 50 to 500 grams of a mixture or substance containing methamphetamine, see 18 U.S.C. § 2; 21 U.S.C. § 846; and on Count 5 of possession with intent to distribute 50 to 500 grams of a mixture or substance containing methamphetamine and 50 grams or more of actual methamphetamine, see 18 U.S.C. § 2; 21 U.S.C. § 841(a)(1).

At Vega-Toscano's sentencing, the Government attributed to him a total quantity of 155.18 grams of actual methamphetamine based on laboratory reports. The Government and Vega-Toscano stipulated that the purity analyses of the various quantities comprising that total are subject to a 10% margin of error. The Presentence Investigation Report (PSR) recommended a base offense level of 34 based upon the drug quantity, a two-level adjustment for obstruction of justice, and a criminal history category I, resulting in an advisory Guidelines sentencing range of 188 to 235 months of imprisonment. Vega-Toscano objected to the base offense level. The Sentencing Guidelines provide that the break point between a base offense level of 32 and a level 34 is 150 grams of actual methamphetamine. See U.S. Sentencing Guidelines Manual (USSG) § § 2D 1.1(c)(3) & (4) (2007). Vega-Toscano argued that he must be given the benefit of the 10% margin of error in the quantity determination, which would result in a quantity less than 150 grams and would yield the lower advisory Guidelines range. The district court overruled the objection, finding that a base offense level 34 was appropriate. The district court sentenced Vega-Toscano at the low end of the applicable Guidelines range to 188 months of imprisonment.

Montes-Medina's sentencing calculation also began at base offense level 34. The district court overruled his objection to a two-level enhancement for obstruction of justice. The PSR recommended the enhancement because Montes-Medina had called Vega-Toscano to testify knowing he would lie. The district court found that Vega-Toscano had committed perjury on at least eight occasions at trial, testifying that Montes-Medina was never involved in the distribution of methamphetamine and asserting that Montes-Medina's voice is not on the recording of negotiations for the delivery of methamphetamine on December 27, 2006. The district court also found circumstances indicating that Montes-Medina knew Vega-Toscano would lie on his behalf. With this enhancement, the resulting advisory sentencing range was 188 to 235 months of imprisonment, and the...