U.S. v. Rolon-Ramos

• Citation: 502 F.3d 750
• Decision Date: 01 October 2007
• Docket Number: No. 07-1066.,07-1066.
• Parties: UNITED STATES of America, Appellee, v. Miguel Angel ROLON-RAMOS, aka Rogelio Carrillo-Ortiz, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

502 F.3d 750

UNITED STATES of America, Appellee, v. Miguel Angel ROLON-RAMOS, aka Rogelio Carrillo-Ortiz, Appellant.

No. 07-1066.

United States Court of Appeals, Eighth Circuit.

Submitted: June 11, 2007.

Filed: October 1, 2007.

Matthew R. Metzgar, argued, Sioux City, IA, for appellant.

Shawn Wehde, Assistant U.S. Attorney, argued, Sioux City, IA, for appellee.

Before MELLOY, SMITH, and GRUENDER, Circuit Judges.

SMITH, Circuit Judge.

Miguel Rolon-Ramos was convicted of conspiracy to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and aiding and abetting the possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c) and 2(a). The district court denied Rolon-Ramos's motions for judgment of acquittal and subsequently sentenced him to 180 months' imprisonment. After careful consideration, we affirm the convictions, but reverse the drug quantity attributed to Rolon-Ramos, and remand for resentencing.

I. Background¹

In May 2006, Iowa law enforcement officers were contacted by Donald Steburg, Jr., an Iowa methamphetamine dealer, who told the officers that he wished to cease selling illegal narcotics. Steburg debriefed with law enforcement over the course of two days, providing information regarding his methamphetamine operation and his involvement with, and knowledge of, other dealers and distributors. Steburg informed the officers, among other things, that: (1) his primary methamphetamine supplier was Julio Garcia-Hernandez—known to Steburg as "Cholo"; (2) he had purchased multiple pounds of methamphetamine from Garcia-Hernandez over the course of several months; (3) Garcia-Hernandez sold him methamphetamine for $6,000 per half pound and $12,000 per pound; (4) he owed Garcia-Hernandez approximately $6,000 for previously fronted drugs; and (5) Garcia-Hernandez's cousin, Jose Deluna-Ponce, often delivered drugs and collected drug debts on Garcia-Hernandez's behalf.

With this information, and Steburg's assistance, the Tri-State Drug Task Force ("the Task Force") attempted to set up a controlled methamphetamine purchase from Garcia-Hernandez. Steburg placed a monitored phone call to Garcia-Hernandez to arrange a meeting at Garcia-Hernandez's trailer on June 13, 2005. Task Force Agent John Howard, posing as Steburg's "money man," accompanied Steburg to meet Garcia-Hernandez. Upon their arrival, Steburg and Garcia-Hernandez went inside the trailer while Agent Howard remained in Steburg's car. Once inside, Garcia-Hernandez demanded payment of the drug debt Steburg owed him. Steburg replied that the man in the car— the undercover agent—could provide the money to pay off the debt, but that Garcia-Hernandez would have to front him additional methamphetamine. No drugs were sold. Instead, Garcia-Hernandez instructed Steburg to retrieve the money he owed and meet him later that day at the Jo-Mart Motel in Denison, Iowa.

Steburg and Agent Howard drove to the motel, which was already under surveillance. Deluna-Ponce met them in the parking lot and led Steburg to a motel room, while Agent Howard waited in the car. Steburg, wearing electronic monitoring devices, and Deluna-Ponce entered the motel room; Garcia-Hernandez, and a pony-tailed man—later identified as defendant Rolon-Ramos—were already inside.² As Steburg approached Garcia-Hernandez, he noticed that Garcia-Hernandez had a handgun beside him. Upon seeing the gun, Steburg turned to exit the room, but Garcia-Hernandez uttered something in Spanish, and Deluna-Ponce and Rolon-Ramos shut and locked the motel room door and stood in front of it, blocking the exit. When Steburg turned back around, Garcia-Hernandez was pointing the gun at him and demanding the money owed to pay off the debt. After Steburg convinced Garcia-Hernandez that the money was in his car, Garcia-Hernandez allowed Steburg to exit the motel room to retrieve the money, but required Steburg to leave his cell phone in the room to ensure his return. Once Steburg returned to his vehicle, however, he informed Agent Howard that Garcia-Hernandez had a gun and that he refused to return inside. Steburg and Agent Howard then departed from the motel.

Shortly after Steburg's departure, surveillance officers witnessed Rolon-Ramos exit the motel room and walk toward the front of the motel. One of the surveillance officers testified that Rolon-Ramos held his right elbow close to his right side as he walked, as if he were hiding something at his waist. Due to obstructed views, the surveillance officers could not see where Rolon-Ramos went, but he returned to the motel room approximately two minutes later. A short time thereafter, Rolon-Ramos again left the room, walking away from the motel in the opposite direction. Police arrested Rolon-Ramos a short distance from the motel with a small amount³ of methamphetamine in his possession.

Meanwhile, back at the motel, Task Force Agent Mark Minten received a cell phone call from Steburg's cell phone. Agent Minten knew that Steburg had left his phone with Garcia-Hernandez and Deluna-Ponce inside the motel room, so he answered the phone feigning drug involvement. He asked, "Hey, did you get my stuff?" The caller, who identified himself as "Cholo"—Garcia-Hernandez's known alias—told Agent Minten that Steburg owed him too much money and that he would not provide any more drugs to Steburg until the debt was paid. Agent Minten told Cholo that he had $2,000, and Cholo agreed to sell him two ounces of "ice" or crystal methamphetamine for that amount. Agent Minten told Cholo that he was in another town but that he would try to contact someone to drop off the money and pick up the drugs. Cholo told Agent Minten to call him back and gave Agent Minten a phone number that matched the number that Steburg used to contact Garcia-Hernandez.

Garcia-Hernandez and Deluna-Ponce were subsequently arrested as they attempted to drive away from the motel room. Police found no contraband in their possession. A search of the motel room uncovered small amounts⁴ of methamphetamine hidden in a loaf of bread and inside a shoe. No firearm was ever located.

Rolon-Ramos, Garcia-Hernandez, and Deluna-Ponce were all charged with conspiracy to distribute 500 grams or more of methamphetamine and possession or aiding and abetting the possession of a firearm in connection with a drug trafficking crime. Deluna-Ponce pleaded guilty to the charges, and Rolon-Ramos and Garcia-Hernandez chose to go to trial and were tried jointly.

At trial, Steburg and another cooperating witness, Jason Bolden, each testified that: (1) Garcia-Hernandez had sold them multiple pounds of methamphetamine for further distribution; (2) Garcia-Hernandez often fronted them the drugs; and (3) Deluna-Ponce often delivered the drugs and collected the money for the drugs. Steburg also testified about the events at the Jo-Mart Motel on June 13, 2006. Neither Rolon-Ramos, Garcia-Hernandez, nor Deluna-Ponce testified. The government connected Rolon-Ramos to the conspiracy through his presence and activities at the motel on June 13, 2006.

At the conclusion of the government's evidence, Rolon-Ramos moved for a judgment of acquittal, which the court denied. The jury convicted Rolon-Ramos and Garcia-Hernandez of both charges. Following the verdict, Rolon-Ramos again moved for a judgment of acquittal. After a hearing on the motion, the court ruled that sufficient evidence permitted a reasonable jury to conclude that: (1) there was a drug conspiracy; (2) Rolon-Ramos voluntarily joined the conspiracy; (3) there was a gun used in connection with the conspiracy; and (4) Rolon-Ramos aided and abetted the possession of the firearm in furtherance of a drug trafficking crime.

II. Discussion

Rolon-Ramos challenges the sufficiency of the evidence on both convictions. "We review the sufficiency of the evidence de novo, viewing evidence in the light most favorable to the government, resolving conflicts in the government's favor, and accepting all reasonable inferences that support the verdict." United States v. Bower, 484 F.3d 1021, 1025 (8th Cir.2007) (internal quotations and citation omitted). "We will only reverse the defendant's conviction if no reasonable jury could have found the defendant guilty beyond a reasonable doubt." Id. (internal quotations and citation omitted).

A. Conspiracy to Distribute 500 grams or More of Methamphetamine

Count I of the indictment charged Rolon-Ramos with conspiracy to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841 and 846. "To establish that a defendant conspired to distribute drugs under 21 U.S.C. § 846, the government must prove: (1) that there was a conspiracy, i.e., an agreement to distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that the defendant intentionally joined the conspiracy." United States v. Jiminez, 487 F.3d 1140, 1146 (8th Cir.2007). "The conspiracy's existence may be proved by direct or circumstantial evidence." United States v. Cain, 487 F.3d 1108, 1111 (8th Cir.2007). "But a defendant's mere presence, coupled with the knowledge that someone else who is present intends to sell drugs, is insufficient to establish membership in a conspiracy." United States v. Jimenez-Villasenor, 270 F.3d 554, 558 (8th Cir.2001) (internal quotations and citation omitted). "[W]hile a defendant's role in a conspiracy may be minor, the government must offer enough evidence to prove a defendant's connection to a conspiracy beyond a reasonable doubt before a conspiracy conviction can be upheld." United States v. Lopez, 443 F.3d 1026, 1028 (8th Cir.2006) (en banc). "When reviewing the sufficiency of the evidence to support a conspiracy conviction, we will affirm if the record, viewed most favorably to the government, contains substantial evidence supporting the jury's verdict, which means evidence sufficient to prove the elements of the crime beyond a reasonable doubt."...