U.S.A v. Rivera-carrera

• Decision Date: 28 July 2010
• Docket Number: D.C. No. 2:07-CR-00204-ABJ,No. 09-8007,09-8007
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EFRAIN RIVERA-CARRERA, a/k/a Fats, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.EFRAIN RIVERA-CARRERA, a/k/a Fats, Defendant-Appellant.

No. 09-8007

D.C. No. 2:07-CR-00204-ABJ

United States Court Of Appeals

Tenth Circuit

July 28, 2010

ORDER AND JUDGMENT^*

Before BRISCOE, Chief Judge, and CUDAHY^** and TACHA, Circuit Judges.

Richard D. Cudahy Circuit Judge

A jury found defendant Efrain Rivera-Carrera guilty on two counts: (1) conspiracy both to possess with intent to distribute, and to distribute, narcotics and (2) possession of a firearm in furtherance of a drug-trafficking conspiracy. Mr. Rivera now challenges the sufficiency of the evidence and an evidentiary holding attrial, as well as his sentence. These challenges lack merit. We also hold that his sentence was reasonable.

I. INTRODUCTION

In late 2004, Domingo Costalez proposed to Carlos Quinonez of the Chiqui 30 gang an arbitrage scheme to exploit the higher price of, and insatiable demand for, drugs in Casper, Wyoming. With the help of others, Carlos and his brother Javier Quinonez began transporting drugs from Denver to Casper, where they sold the drugs at a significant markup. Finding minimal demand for other illicit substances, their focus shifted to transporting and selling methamphetamines.

In 2005, Javier hired appellant Efrain Rivera-Carrera (a/k/a "Fats") to join the operation. The two men grew up in the same neighborhood outside of Denver, and were both members of the Chiqui 30, a local gang whose primary activities were "[b]uyings, shootings, sell[ing] drugs, mak[ing] money." App. at 149. Mr. Rivera worked as the group's driver, transporting methamphetamines to Casper and returning to Denver with the proceeds from these sales because the others thought that Mr. Rivera was the only member of the group with a valid driver's license. Once, while moving $20,000 in drug proceeds back to Denver, a state trooper stopped Javier and Mr. Rivera, but the trooper did not find the money. In all, Mr. Rivera drove to Casper roughly fifteen times and, at least twice, he and Javier carried between one-half and one pound of methamphetamines. Javier often carried a ninemillimeter firearm with him in the vehicle when he and Mr. Rivera dropped off drugsin Casper, especially at night. Mr. Rivera occasionally showed off his own.357 Magnum, which he suggested he had with him always.

But Mr. Rivera wore other hats in this operation. Aside from chauffeuring methamphetamines and drug money, he purported to act as the team's "muscle," which involved "roughing people up for money." App. at 188. On one occasion in July of 2005, Mr. Rivera helped bring dealer Daniel Anderson to visit Javier, who held a gun to Anderson's head and warned him not to cooperate with law enforcement. At another point, possibly in the winter of 2006, Mr. Rivera convinced Costalez to come to a Taco John's in Casper so that Carlos could address Costalez and Michael Williams' drug debts. At the Taco John's, Carlos punched Williams and others took Costalez back to a motel where Carlos roughed him up.

Mr. Rivera participated in the other stages of the operation. He watched as Javier and others "cut" pounds of methamphetamines by mixing them with methylsulfonylmethane (commonly known as "MSM") and packaged the mixture. At one point, Carlos strapped two vacuum-sealed bags of this mixture to Mr. Rivera's body and then sent him on a bus to Casper. Mr. Rivera also sold methamphetamines himself. For example, Costalez delivered Anderson's leftover methamphetamines to Mr. Rivera and Javier while the men were in Casper, and Mr. Rivera remained at Liz Adams' house to sell it. On another occasion, Mr. Rivera went to the garage of Armour Jolley, a Casper-area drug dealer. Before Mr. Rivera arrived, Jolley had no drugs but, after Mr. Rivera left, Jolley had everything he needed to get himself andanother local drug dealer, Robert Johnson, high.

In contrast, Mr. Rivera testified that he had turned from gang life at about age 18 when his brother was shot and killed in a fight with gang members. Mr. Rivera claimed that he was merely a driver in the Quinonez brothers' gun-running operation between Denver and Casper. He explained that he never saw any drugs, in part because he was incarcerated from November 2005 to January 2006, but he did admit using cocaine and marijuana. Mr. Rivera acknowledged that, in the spring of 2006, Carlos gave him three ounces of cocaine to sell, but Mr. Rivera claimed he used it all himself. He explicitly denied that he ever took drugs to Casper or that he collected money for the Quinonez brothers.

At the close of the five-day trial, the jury found Mr. Rivera guilty on both counts. He was sentenced to 151 months in prison on Count 1, 60 months in prison on Count 2, to run consecutively and 5 years of supervised release, with deportation proceedings to commence at the end of his term (Mr. Rivera illegally immigrated at the age of one). Mr. Rivera now appeals his conviction and sentence, contending that the district court had insufficient evidence to uphold his convictions, that it wrongfully admitted hearsay and that it imposed an unreasonable sentence.

II. DISCUSSION

A. Sufficiency of the evidence.

Mr. Rivera argues that the evidence does not establish he was involved in the criminal conspiracy to distribute methamphetamine, cocaine or marijuana, becausethe evidence did not prove he was aware of the goal of the others' conspiracy, or at least, he did not know that the drugs he was transporting with Javier and others would be sold in Casper. Moreover, he argues that he was not a willing participant with an intent to advance the purpose of the conspiracy because he was merely an innocent drug user and driver, whose perception was altered by long-term drug use, ignorant of the criminal conspiracy around him.

We review de novo whether the government presented sufficient evidence to support a conviction. In so doing, we view the facts in evidence in the light most favorable to the government. We will not weigh conflicting evidence or second-guess the fact-finding decisions of the jury. Rather, our role is limited to determining whether a reasonable jury could find guilt beyond a reasonable doubt, based on the direct and circumstantial evidence, together with the reasonable inferences to be drawn therefrom.

United States v. Sells, 477 F.3d 1226, 1235 (10th Cir. 2007) (internal citations and quotations omitted); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979).

To convict a defendant of conspiracy under 21 U.S.C. §§ 841(a)(1) & (b)(1)(A), 846, the government must present direct or circumstantial evidence to prove beyond a reasonable doubt that: "(1) two or more persons agreed to violate the law, (2) the defendant knew the essential objectives of the conspiracy, (3) the defendant knowingly and voluntarily participated in the conspiracy, and (4) the alleged coconspirators were interdependent." United States v. Yehling, 456 F.3d 1236, 1240 (10th Cir. 2006); accord United States v. Dunmire, 403 F.3d 722, 724 (10th Cir. 2005). To prove knowledge of the conspiracy, "the government does nothave to show the defendant knew all the details or all the members of a conspiracy.... [T]he government needs only to demonstrate the defendant shared a common purpose or design with his alleged coconspirators." Yehling, 456 F.3d at 1240 (citing United States v. Evans, 970 F.2d 663, 669 (10th Cir. 1992)). On the other hand, merely associating with known criminal conspirators or purchasing drugs for personal use is insufficient to establish participation in a conspiracy. United States v. Powell, 982 F.2d 1422, 1429 (10th Cir. 1992).

Mr. Rivera knew the object and extent of the Quinonez brothers' conspiracy both to posses with the intent to distribute, and to distribute, 500 grams or more of mixtures containing methamphetamine, cocaine or marijuana, see 21 U.S.C. § 841(a)(1) & (b)(1)(A), and knowingly participated in it. There is trial evidence that he watched the conspirators prepare and package methamphetamines and purchase narcotics from one another and, in fact, sold drugs and transported two pounds of methamphetamines on his person, see United States v. Caro, 965 F.2d 1548, 1556 (10th Cir. 1992) (a defendant's delivery of large quantities of drugs provides circumstantial evidence that he is not merely a customer of the conspiracy); Powell, 982 F.2d at 1430 (10th Cir. 1992) (intent to distribute may be inferred by the amount of drugs involved), drove drugs to Casper, see United States v. Gwathney, 465 F.3d 1133, 1143 (10th Cir. 2006) (a jury may permissibly infer that a driver has knowledge of the contraband within his vehicle) and picked up a safe containing the proceeds of the operation. Compare Evans, 970 F.2d at 672-73 (holding as sufficientevidence of participation in a drug conspiracy a co-conspirator's delivery of drugs, minor drug sales, participation in arguments about drug debts, in addition to a few incidents when he was merely present during drug-related transactions) with id. at 672-74 (holding as insufficient evidence that the defendant had purchased a small amount of drugs on one occasion and twice loaned the conspiracy some scales but never attended any meetings or transactions central to the conspiracy). Viewing the trial evidence in the light most favorable to the government, we hold that a reasonable jury could have found Mr. Rivera guilty of the conspiracy count.

We pause for a moment on Mr. Rivera's argument that he did not know the object of the conspiracy because of his drug-use-induced mental deficiencies. In some cases, we have held that voluntary intoxication might prevent a defendant from forming the requisite mens rea for a specific-intent crime. See United States v. Jackson, 213 F.3d 1269, 1291-94 (10th Cir. 2000), vacated on other grounds, 531 U.S. 1033 (2000). However, a defendant's status as a drug addict is never enough to upend a conviction. See Jackson, 213 F.3d at 1294. Instead, there must be evidence that the...