United States v. Suarez

• Decision Date: 22 June 2012
• Docket Number: No. 10–10393.,10–10393.
• Citation: 2012 Daily Journal D.A.R. 8556,12 Cal. Daily Op. Serv. 6999,682 F.3d 1214
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Rodolfo SUAREZ, Jr., Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

682 F.3d 1214

12 Cal. Daily Op. Serv. 6999

2012 Daily Journal D.A.R. 8556

UNITED STATES of America, Plaintiff–Appellee,

v.Rodolfo SUAREZ, Jr., Defendant–Appellant.

No. 10–10393.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 16, 2012.

Filed June 22, 2012.

Karen A. Escobar, Assistant United States Attorney, Fresno, CA, for the plaintiff-appellee.

David Thomas Reagan, Oakland, CA, for the defendant-appellant.

Appeal from the United States District Court for the Eastern District of California, Oliver W. Wanger, Senior District Judge, Presiding. D.C. No. CR 08–124–4 OWW.

Before: A. WALLACE TASHIMA and BARRY G. SILVERMAN, Circuit Judges, and LYNN S. ADELMAN, District Judge.^*

OPINION

TASHIMA, Circuit Judge:

Defendant–Appellant Rodolfo Suarez appeals his conviction for conspiracy to distribute and to possess with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Suarez contends that the guilty verdict on that charge is fatally inconsistent with the jury's decision to acquit him on a charge of possession with intent to distribute methamphetamine in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Suarez also appeals his sentence of 240 months' imprisonment, which the district court imposed based on the twenty-year mandatory minimum required by 21 U.S.C. § 841(b)(1)(A). He contends that his 2003 guilty plea to felony drug possession in California state court does not qualify as a “prior conviction” that “has become final” within the meaning of § 841(b)(1)(A). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm Suarez's conviction, but vacate his sentence, and remand for resentencing.

I. Background

Cal.Penal Code § 1000.1(b) provides for deferred entry of judgment for a first-time drug offender who meets certain pre-requisites, pleads guilty, and enters a drug rehabilitation program. If the defendant successfully completes rehabilitation, the criminal charge against him is dismissed; if the court finds that the defendant is not performing satisfactorily, the court renders a finding of guilty to the charge pled, enters judgment, and schedules a sentencing hearing. Cal.Penal Code § 1000.3. The statute provides that the defendant's plea of guilty “shall not constitute a conviction for any purpose unless a judgment of guilty is entered.” Cal.Penal Code § 1000.1(d). “Upon successful completion of a deferred entry of judgment program, the arrest upon which the judgment was deferred shall be deemed to have never occurred.” Cal.Penal Code § 1000.4(a).

In 2003, a felony complaint was filed against Suarez in California Superior Court, alleging that he committed two violations of the California Health and Safety Code: (1) felony possession of methamphetamine; and (2) the misdemeanor of being under the influence of methamphetamine. Suarez entered a plea of guilty and opted to participate in the § 1000.3 deferred entry of judgment program, which he successfully completed on May 21, 2004. The case against him was dismissed on March 2, 2005.

In 2009, a federal indictment was returned against Suarez and six co-defendants. Count One charged Suarez and his codefendants with conspiracy to distribute and to possess with intent to distribute methamphetamine and cocaine. The indictment alleged that the conspiracy began no later than September 6, 2006 and continued until approximately April 17, 2008. Count Six charged Suarez and three co-defendants, including Eustorgio Flores, with possession with intent to distribute methamphetamine. The remaining counts in the indictment charged Suarez's co-defendants with various other drug-related offenses. Four of Suarez's co-defendants pled guilty before trial.

On March 6, 2010, the government filed an information, as required by 21 U.S.C. § 851, providing notice of its intention to seek an enhanced mandatory minimum sentence of twenty years' imprisonment for Suarez, pursuant to § 841(b)(1)(A). Section 841(b)(1)(A) provides, in part, that “[i]f any person commits [a violation of § 841(b)(1)(A) ] after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment.” The government sought the enhanced sentence based on Suarez's dismissed California felony possession charge from 2003.

In response, Suarez filed a motion to dismiss the information. He argued that the California felony possession charge did not qualify as a “prior conviction” that “has become final” under § 841(b)(1)(A), because it had been dismissed and because California law stated that his guilty plea pursuant to § 1000.3 was not to be treated as a conviction for any purpose. The government opposed the motion, but the district court declined to rule on the issue prior to trial.

Suarez, Flores, and their co-defendant Pioquinto Larios Santacruz proceeded to a jury trial. The government presented the testimony of Drug Enforcement Administration (“DEA”) Special Agent Todd Kuehnlein and a confidential source (“CS”), as well as 27 other witnesses. Agent Kuehnlein testified that the DEA began an investigation into Flores and Santacruz in 2007, based on information provided by the CS. Agent Kuehnlein testified that in April 2008, the CS arranged to buy cocaine and methamphetamine from Flores.

The DEA began wiretapping Flores' telephone in January 2008. The government presented three recorded conversations between the CS and Suarez, all taped within a few days of April 17, 2008, in which Suarez told the CS that the “cardboard boxes” would be “showing up soon,” discussed the price of the “white box,” and gave the CS directions to the nursery where Suarez and Flores worked. Agent Kuehnlein testified that, based on his experience, Suarez had become a “pretty big player” in the drug transaction at that point. On appeal, Suarez challenges that testimony, arguing that in some of these conversations he was simply acting as a Spanish–to–English translator for Flores.

In a fourth recorded phone call, on April 17, 2008, Suarez told the CS that the five “windows” that the CS had ordered had arrived, but that the “styrofoam” was not ready. In a subsequent call made on the same day, Suarez explained to the CS that the pick-up location had changed, that the CS could follow Suarez and Flores to the new location, and that their supplier would “give [the CS] the windows and load them up, you know.” Kuehnlein testified at trial that “cardboard boxes” referred to drugs, “styrofoam” and “white box” were code words for cocaine, and “five windows” was code for five pounds of crystal methamphetamine.

Kuehnlein testified that he and the CS met Flores and Suarez at a Texaco station on April 17, 2008, and that the CS and Kuehnlein followed Suarez's car in their truck for about ten to fifteen minutes, until they reached a house in Farmersville. Agent Kuehnlein testified that Suarez drove erratically, changing speeds frequently, a technique Kuehnlein has seen used to detect law enforcement agents that may be following a car. Suarez dropped Flores off in front of the house and then left the area; it was Kuehnlein's understanding that Suarez was keeping watch from a remote location. Law enforcement officers subsequently arrested Flores and Suarez and seized over 1,500 grams of crystal methamphetamine from the Farmersville house.

Kuehnlein further testified that he interviewed Suarez on April 18, 2008, and that Suarez admitted that he had participated in two drug transactions: one in midsummer 2006, in which the CS had purchased four or five bags of crystal methamphetamine and cocaine, and the other on April 17, 2008. Suarez also told Kuehnlein that he knew that the April 17 transaction was for five kilograms of cocaine and five pounds of methamphetamine and that he expected payment for his involvement in the sale.

Suarez did not present any evidence at trial. The jury found Suarez guilty of the conspiracy charge in Count One with respect to the required amount of methamphetamine, but not with respect to the required amount of cocaine. The jury also found Suarez not guilty of the charge in Count Six, possession of methamphetamine with intent to distribute. In contrast, the jury found Flores guilty of both Counts One and Six.

Suarez filed a motion for a judgment of acquittal, contending that the jury had handed down impermissibly inconsistent verdicts and reasserting his argument that a twenty-year mandatory minimum sentence would not be appropriate given his participation in the California deferred judgment program. Suarez's Pre–Sentence Investigation Report recommended a sentence of 292 months. In response, Suarez filed a sentencing memorandum in which he again objected to the application of the twenty-year mandatory minimum under § 841(b)(1)(A). The district court orally denied Suarez's motion for a judgment of acquittal and sentenced Suarez to 240 months in custody after concluding that Suarez's prior felony plea was a proper basis for a sentencing enhancement under § 841(b)(1)(A). Suarez timely appealed his conviction and sentence.

II. Standard of Review

Where a defendant moved for acquittal before the district court, this court reviews de novo whether sufficient evidence exists to support a guilty verdict. United States v. Stewart, 420 F.3d 1007, 1014 (9th Cir.2005). The same de novo standard of review applies to the legal determination of whether a defendant may upset a guilty verdict because it is inconsistent with an acquittal. United States v. Hart, 963 F.2d 1278, 1280 (9th Cir.1992). The construction and interpretation of 21 U.S.C. § 841(b)(1)(A) is a question of law, also reviewed de novo. United States v. Norbury, 492 F.3d 1012, 1014 & n. 2 (9th Cir.2007).

III. Discussion

A. Inconsistent Verdicts

Suarez argues that his acquittal on the possession charge is “fatally inconsistent” with the jury's...