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United States v. Soto

United States Court of Appeals, Sixth Circuit

March 11, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
MANUEL ANTONIO SOTO (13-2300); HECTOR SANTANA (13-2389); CHRISTOPHER ESPINOZA (13-2510); JUAN RAMON RESPARDO-RAMIREZ (13-2582); Defendants-Appellants

Argued November 19, 2014.

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Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:10-cr-20635-15--David M. Lawson, District Judge.

ARGUED:

Mark J. Kriger, LARENE & KRIGER P.L.C., Detroit, Michigan, for Appellant in 13-2300.

Kevin M. Schad, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant in 13-2389.

Joseph A. Niskar, Royal Oak, Michigan, for Appellant in 13-2510.

Sanford A. Schulman, Detroit, Michigan, for Appellant in 13-2582.

Mark Chasteen, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

ON BRIEF:

Mark J. Kriger, N.C. Deday LaRene, LARENE & KRIGER P.L.C., Detroit, Michigan, for Appellant in 13-2300.

Zenaida R. Lockard, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant in 13-2389.

Joseph A. Niskar, Royal Oak, Michigan, for Appellant in 13-2510.

Sanford A. Schulman, Detroit, Michigan, for Appellant in 13-2582.

Mark Chasteen, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

Before: NORRIS, MOORE, and GIBBONS, Circuit Judges.

OPINION

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KAREN NELSON MOORE, Circuit Judge.

This case involves the drug-trafficking, kidnapping, and firearms convictions of Defendants-Appellants Hector Santana, Manuel Antonio Soto, Christopher Espinoza, and Juan Ramon Respardo-Ramirez. A grand jury indicted them on two conspiracies and two firearms charges: conspiracy to possess cocaine with the intent to distribute and to distribute it, 21 U.S.C. § § 846, 841(a)(1) & 841(b)(1)(A)(ii)(II) (2012) (Count 1); conspiracy to kidnap, 18 U.S.C. § 1201(a)(1), (c) (Count 5); possession of a firearm in furtherance of and during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c) (2012) (Count 7); and possession of a firearm in furtherance of and during and in relation to a crime of violence, 18 U.S.C. § 924(c) (Count 8). The indictment permitted the government to try the appellants as aiders and abettors for Counts 7 and 8. In addition, the grand jury indicted Santana, Soto, and Espinoza as principals and as aiders and abettors for possession of 500 or more grams of cocaine with the intent to distribute it in violation of 21 U.S.C. § § 841(a)(1) & 841(b)(1)(B)(ii)(II) (2012), 18 U.S.C. § 2 (2012) (Count 2). Count 6 charged all four with kidnapping as principals and as aiders and abettors in violation of 18 U.S.C. § § 1201, 2.

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The grand jury indicted only Soto for obstruction of justice in violation of 18 U.S.C. § 1512(b)(1)--(2)(A) (Count 9).

At the conclusion of a trial, a jury convicted the defendants-appellants on all counts with two exceptions: the jury acquitted Espinoza of Count 1, conspiracy to distribute cocaine, and Respardo-Ramirez of Count 5, conspiracy to kidnap. The four defendants appeal their convictions, and Soto and Santana also appeal their sentences. For the reasons set forth in this opinion, we AFFIRM the judgments.

I. BACKGROUND

A. Evidence at Trial

At trial, in addition to various law-enforcement officers, three witnesses who had originally been charged as co-conspirators testified: Erik Freeman, Vanessa Gudino, and Jose Bravo-Garcia. Bravo-Garcia sold cocaine in Chicago and received cocaine deliveries from Santana, who worked for Soto. Respardo-Ramirez also delivered cocaine to Bravo-Garcia on Soto's behalf approximately twenty times. Bravo-Garcia and Santana sold Soto's cocaine to two Detroit-based sellers, Jose and Francisco Enriquez-Enriquez, who resold the cocaine to Erik Freeman, another seller in Detroit.

One of these drug transactions from Soto to all of these middlemen went awry when another middleman, El Cartero, disappeared without paying Soto for a ten-kilogram cocaine delivery to the Enriquez-Enriquez brothers. In response to this failed delivery, Soto told Garcia-Bravo, who had brokered the deal, to find the Enriquez-Enriquez brothers or El Cartero. Santana was able to help: he knew where the Enriquez-Enriquez brothers lived. In October 2009, Garcia-Bravo, Santana, Gudino, Anthony Ramirez, and Christopher Espinoza hatched a plan to go to Detroit to look for the Enriquez-Enriquez brothers in order to collect the money or to bring them back to Chicago. To accomplish that goal, they took two or three guns.

The plan was to pretend to meet with Jose Enriquez-Enriquez (" Enriquez-Enriquez" ) for a drug transfer and then use the guns to scare him. When Enriquez-Enriquez arrived at the parking lot, Espinoza, Santana, and Anthony Ramirez confronted Enriquez-Enriquez and his cousin, Victor, and forced them into the van at gunpoint. The group tied Enriquez-Enriquez's and Victor's hands with zip ties and duct tape and returned to Chicago, where they brought them to a garage. Soto and Respardo-Ramirez met the group in the garage with guns. Soto questioned Enriquez-Enriquez and Victor about the missing money. After an hour of questioning, the kidnapping participants left the garage, but Respardo-Ramirez remained to guard Enriquez-Enriquez and Victor. While Respardo-Ramirez was guarding, he placed his gun on a table in the garage.

The next day, Gudino, Bravo-Garcia, Anthony Ramirez, Espinoza, Santana, and Enriquez-Enriquez returned to Detroit. The plan was to lure Freeman to meet with them by offering to sell three kilos of cocaine. Once in the meeting, the group planned to force Freeman to deliver Soto's money. The group brought the same two or three guns used during the first Detroit trip. Bravo-Garcia confirmed that Respardo-Ramirez did not touch, use, or own the firearms used during the trip to Detroit.

Once in Detroit, the group met with Freeman, who insisted on cooking the cocaine to test its purity one kilo at a time. Freeman rejected the first two kilos, but liked the third. Next, Freeman took the group to a second house, where he kept his money. Bravo-Garcia, Espinoza, Ramirez,

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and Santana followed Freeman into the house, guns in tow. Bravo-Garcia, Espinoza, and Ramirez pointed their guns at Freeman, and Freeman and Enriquez-Enriquez fell to the floor. After handing his gun to Santana, Bravo-Garcia took Freeman's money to the car. By the time Bravo-Garcia had returned to the house, Santana, Ramirez, and Espinoza had tied Freeman to a pole in the basement of the house, where they left him.

Before driving back to Chicago, the group picked up a second car. On the return drive to Chicago, police officers stopped and searched the cars and found the three kilos of cocaine, currency, and the three handguns in the car in which Gudino, Bravo-Garcia, and Ramirez were traveling.

B. Post-Trial Motions for Acquittal or New Trial

After the trial, all defendants-appellants filed motions for judgment of acquittal or a new trial. Santana argued that the evidence was insufficient for a rational jury to find him guilty of conspiracy to kidnap, kidnapping, and brandishing a firearm in furtherance of a crime of violence, namely the kidnapping. Espinoza contended that there was insufficient evidence for a rational jury to reach the following conclusions: that he specifically intended to deliver cocaine; that he joined the conspiracy to kidnap; that he participated in the kidnapping; and that he possessed a firearm. Soto retained new counsel and argued that he was entitled to a judgment of acquittal because there was insufficient evidence of a specific intent to deliver cocaine. Soto also asserted that he was entitled to a new trial because his original trial counsel was ineffective because he did not move to exclude evidence seized from 4309 W. 77th Place and 5318 S. Mozart Street in Chicago, Illinois. Respardo-Ramirez joined Soto's motion for a new trial on the basis that the court should have excluded the evidence seized from the two locations. Respardo-Ramirez filed an additional motion for acquittal on the basis that the evidence was insufficient to convict him of the conspiracy to possess and distribute cocaine, kidnapping, and possession of a firearm in relation to a drug trafficking crime. Respardo-Ramirez focused on the sufficiency of the evidence showing that he joined the conspiracy, that the kidnapping victims were taken across state lines forcibly, and that he owned or possessed the firearms listed in the indictment.

On August 12, 2013, the district court issued an opinion and order granting in part and denying in part the defendants' motions for judgment of acquittal, rejecting most of the defendants' claims. R. 515 (Dist. Ct. Op. and Order) (Page ID #3444--79). There was one exception: the district court granted Respardo-Ramirez's motion for a judgment of acquittal as to Count 8, possessing and brandishing a firearm during and in relation to a crime of violence. R. 515 at 22--23, 36 (Page ID #3465--66, 3479).

C. Sentencing

Before the sentencing hearing, Santana filed a sentencing memorandum and objections to the Presentence Report (" PSR" ). At the sentencing hearing, Santana's trial counsel objected to the classification of Counts 7 and 8 as mandatory consecutive sentences. Soto also challenged the probation office's determination that his convictions for Counts 7 and 8 must run consecutively. The district court rejected Soto's and Santana's Sixth Amendment challenges.

Santana received a 120-month sentence for Counts 1, 2, 5, and 6 to be served concurrently; an eighty-four-month sentence for Count 7 to be served consecutively

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to Counts 1, 2, 5, and 6; and also a 300-month sentence for Count 8 to be served consecutively to Count 7. Soto's sentence is 516 months of imprisonment: 132 months for Counts 1, 2, 5, 6, and 9 to run concurrently; eighty-four months for Count 7 to run consecutively to Counts 1, 2, 5, 6, and 9; and 300 months for Count 8 to run consecutively to the other terms of imprisonment.

D. Appeal

Soto, Santana, Espinoza, and Respardo-Ramirez appeal their convictions. Soto and Santana appeal their sentences, as well.

Soto raises two issues on appeal. First, he contends that his trial counsel was constitutionally ineffective because he did not move to suppress the evidence seized at 77th Place and Mozart Street. Soto argues that had his trial counsel filed a motion to exclude the evidence, all of the evidence would have been suppressed because the good-faith exception to the exclusionary rule does not apply. Second, Soto argues that the imposition of the twenty-five year mandatory minimum sentence for a second or subsequent conviction under 18 U.S.C. § 924(c)(1)(C)(I) violates the Sixth Amendment and Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), because a jury did not find that Counts 7 and 8 were second or subsequent offenses.

Santana raises three issues on appeal. First, he argues that there was a fatal variance in the indictment because, under Count 2, the government had to prove a drug-distribution offense, but the evidence at trial established only a robbery. Second, he asserts that the district court should have severed the drug-trafficking and kidnapping offenses so that they would be tried on different dates. Third, he joins Soto's challenge to the mandatory twenty-five-year sentence for second or subsequent weapons convictions.

Espinoza argues only that the evidence does not support his convictions for Count 2, possession of cocaine with the intent to distribute, and Count 7, the related firearm charge. Specifically, he argues that the government did not provide sufficient evidence of the specific intent to distribute the cocaine.

Finally, Respardo-Ramirez raises five issues on appeal. First, he argues that the district court admitted unduly prejudicial evidence of the stop and arrest of John and Valarie Boston in Las Vegas, Nevada. Second, Respardo-Ramirez contends that the district court erroneously admitted evidence seized at 77th Place and Mozart Street in violation of the Fourth Amendment. Third, he claims that he is entitled to a judgment of acquittal with respect to Count 1, conspiracy to distribute cocaine, because the evidence did not establish that he possessed the specific intent to distribute cocaine. Fourth, he asserts that this court should enter a judgment of acquittal as to Count 5 for kidnapping because the government failed to provide evidence that the victims were transported forcibly across state lines. Fifth, he argues that the evidence was insufficient to hold him criminally liable for Count 7, brandishing a firearm during a crime of violence, under a theory of aiding and abetting because he never owned, possessed, or used the firearms listed in the indictment.

II. ANALYSIS

A. The Warrants

Officers from the Chicago Police Department executed two search warrants at 4309 West 77th Place (" 77th Place" ) and 5318 South Mozart Street (" Mozart Street" ). The search of 77th Place uncovered nearly $300,000 in United States currency,

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cocaine, marijuana, firearms, money counters, and drug packaging materials. Officers seized items including firearms, Soto's false identifications, and banking records from the residence on Mozart Street.

Appellants Soto and Respardo-Ramirez seek either a new trial or a judgment of acquittal on the basis that the district court erred by admitting that evidence seized from 77th Place and Mozart Street on the grounds that the searches violated the Fourth Amendment. Soto appeals the district court's denial of his post-trial motion for a new trial based on his claim of ineffective assistance of counsel because, he contends, his trial counsel was ineffective because he did not file a motion to suppress the drug evidence seized at 77th Place and Mozart Street. Respardo-Ramirez argues that the district court erred by admitting the evidence but does not claim that his attorney was ineffective.

1. Soto's Ineffective-Assistance-of-Counsel Claim

a. Standard of Review

The district court addressed Soto's ineffective-assistance-of-counsel of claim in the context of his motion for a new trial. Rule 33 allows a district court, upon defendant's motion, to " vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). " A violation of [a defendant's] Sixth Amendment right to effective assistance of counsel clearly meets [the interest-of-justice] standard." United States v. Munoz, 605 F.3d 359, 373 (6th Cir. 2010). Usually we do not review claims of ineffective assistance of counsel on direct appeal. United States v. Angel, 355 F.3d 462, 469 (6th Cir. 2004). We may do so, however, if a claim rests " entirely upon facts within the record or present[s] purely legal questions." Id. This record provides sufficient evidence to evaluate Soto's particular ineffective-assistance-of-counsel claim because it presents purely legal questions: whether the search warrants were facially defective and whether the good-faith exception to the exclusionary rule applies.

The district court denied Soto's motion for a new trial. R. 515 at 35 (Dist. Ct. Op. & Order) (Page ID #3478). In general, we review a district court's denial of a motion for a new trial for an abuse of discretion including when the defendant asserts that his counsel was ineffective. United States v. Dado, 759 F.3d 550, 563 (6th Cir. 2014). " The district court abuses its discretion when it relies on clearly erroneous findings of fact, uses an erroneous legal standard, or improperly applies the law." Id. at 559 (internal quotation marks omitted).

b. Deficient Performance and Prejudice

In order to demonstrate ineffective assistance of counsel, Soto must show that his counsel's performance was deficient and that he was prejudiced. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An attorney's performance is deficient if his representation " fell below an objective standard of reasonableness." Id. Courts owe trial counsel deference when reviewing his actions and omissions during trial. Id. at 689. When a defendant claims that his counsel was ineffective because counsel failed to litigate a Fourth Amendment claim, he must also show " that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice." Kimmelman v. Morrison, 477 U.S. 365, 375,

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106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).

Soto cannot show prejudice if the evidence was admissible under the good-faith exception to the Fourth Amendment's warrant requirement. United States v. Baker, 719 F.3d 313, 320--21 (4th Cir. 2013) (holding that the good-faith exception to the exclusionary rule applied, and therefore the defendant could not show Strickland prejudice). Courts do not suppress the evidence that officers " obtain in objectively reasonable reliance on a subsequently invalidated search warrant." United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The good-faith exception does not apply in the following four situations:

(1) where the issuing magistrate was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth; (2) where the issuing magistrate wholly abandoned his judicial role and failed to act in a neutral and detached fashion, serving merely as a rubber stamp for the police; (3) where the affidavit was nothing more than a " bare bones" affidavit that did not provide the magistrate with a substantial basis for determining the existence of probable cause, or where the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) where the officer's reliance on the warrant was not in good faith or objectively reasonable, such as where the warrant is facially deficient.

United States v. Hython, 443 F.3d 480, 484 (6th Cir. 2006) (citing Leon, 468 U.S. at 923).

Soto challenges the applicability of the good-faith exception on the third ground. The district court concluded that both affidavits were lacking in indicia of probable cause. R. 515 at 31--32 (Dist. Ct. Op. & Order) (Page ID #3474--75). Nevertheless, the district court concluded that the affidavits were not so lacking as to render the officers' reliance on those warrants objectively unreasonable. Id. at 34--35 (Page ID #3477--78).

" The conclusion that the officers' reliance on the warrant was objectively reasonable requires a 'less demanding showing than the " substantial basis" threshold required to prove the existence of probable cause.'" United States v. Higgins, 557 F.3d 381, 391 (6th Cir. 2009) (quoting United States v. Carpenter, 360 F.3d 591, 595 (6th Cir. 2004) (en banc)) (internal quotation marks omitted). Neither affidavit in question here is " bare bones" or " boilerplate." See United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996). Moreover, both warrants provide " a sufficient link between" 77th Place and Mozart Street and drug activity and the presence of illegal firearms " such that a reasonably well-trained officer would not have known that the search was illegal." Higgins, 557 F.3d at 391. In the affidavit for the 77th Place warrant, the attesting officer wrote that J. Doe claimed that Tony stored the sawed-off shotgun under a bed in the house at 77th Place. R. 476-2 at 2--3 (77th Pl. Warrant) (Page ID #1980--81). In the affidavit for a search warrant of the Mozart Street address, the attesting officer stated that, on that day, a J. Doe[1]

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said that he went to the Mozart Street address to buy cocaine. R. 476-3 at 1--2 (Mozart St. Warrant) (Page ID #1982--83). While at the residence, he said that he saw " Tony" hold a large, clear ziplock bag with small knotted plastic bags inside containing a white powder. Id. at 2 (Page ID #1983). Doe handed Tony $125.00 U.S. currency, and Tony gave J. Doe one of the small bags. Doe concluded that the substance was cocaine because he opened the knotted plastic bag and tested the substance by rubbing the powder against his gums. The attesting officer took J. Doe to 5318 S. Mozart Street, and J. Doe identified the house as the place where he received the white powder. Accordingly, we conclude that the district court did not abuse its discretion by concluding that the challenged evidence would have been admitted under the good-faith exception to the exclusionary rule, and therefore Soto could not establish the prejudice required for his ineffective-assistance-of-counsel claim. See Dado, 759 F.3d at 563; Kimmelman, 477 U.S. at 375.

2. Respardo-Ramirez's Motion for New Trial

Respardo-Ramirez joins Soto's challenge to the admissibility of the evidence seized at 77th Place and Mozart Street, asserting that he has standing to pursue the claim because he resided at 77th Place. We review a district court's denial of a motion for a new trial for an abuse of discretion. Dado, 759 F.3d at 559. Respardo-Ramirez's claim fails for the same reason Soto's fails: the evidence would have been admitted under the good-faith exception to the exclusionary rule. We therefore conclude that the district court did not abuse its discretion.

B. Santana's Severance Claim

1. Standard of Review

For the first time on appeal, Santana argues that the district court erred by trying the kidnapping counts along with the drug-trafficking counts. The government argues that Santana waived his right to challenge the district court's decision not to sever the counts by not filing a motion to sever before trial, and therefore we should not review Santana's defense of misjoinder at all. Santana responds that the proper standard of review is plain error because he only forfeited the issue of severance.

Federal Rule of Criminal Procedure 12(b)(3) lists the motions that " must be raised before trial." Included among them is " a Rule 14 motion to sever charges or defendants." Fed. R. Crim. P. 12(b)(3)(D) (effective Dec. 1, 2014). Had Santana raised this issue after the district court's deadline, then Rule 12(c)(3) would govern the district court's ability to review his claim: " If a party does not meet the deadline for making a Rule 12(b)(3) motion, the motion is untimely. But a court may consider the defense, objection, or request if the party shows good cause." Fed. R. Crim. P. 12(c)(3) (effective Dec. 1, 2014).[2]

Here, Santana raises this issue for the first time on appeal. We previously treated the failure to file a motion listed in Rule 12 as a waiver. United States v. Walden, 625 F.3d 961, 967 (6th Cir. 2010). But we based this treatment on the previous

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wording of Rule 12, which " provide[d] that a party waives the ability to bring a motion [listed in Rule 12] by failing to file a motion before the pretrial motion deadline." Id. (citing Fed. R. Crim. P. 12(b)(3), (e)). However, the new Rule--which eliminates the former Rule 12(e)--no longer refers to a " waiver," and the Advisory Committee made clear the reason for the omission:

Although the term waiver in the context of a criminal case ordinarily refers to the intentional relinquishment of a known right, Rule 12(e) has never required any determination that a party who failed to make a timely motion intended to relinquish a defense, objection, or request that was not raised in a timely fashion. Accordingly, to avoid possible confusion the Committee decided not to employ the term " waiver" in new paragraph (c)(3).

Fed. R. Crim. P. 12, 2014 advisory committee's note. Thus, under the current version of the Rule, we do not treat the failure to file a motion as a waiver unless the circumstances of the case indicate that the defendant intentionally relinquished a known right. Given that Santana did not do so here, we treat Santana's failure to file a motion to sever the counts before trial as a forfeiture: " the failure to make the timely assertion of a right." United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Because Santana did not raise this issue in the district court, we review the joinder of counts for plain error.

There are four parts to plain-error review. " First, there must be an error or defect--some sort of 'deviation from a legal rule.'" Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (quoting Olano, 507 U.S. at 732--33 (1993)). Second, the error " must be clear or obvious, rather than subject to reasonable dispute." Id. " Third, the error must have affected the appellant's substantial rights," which usually " means he must demonstrate that it affected the outcome of the district court proceedings." Id. (internal quotation marks omitted). Fourth, the " the court of appeals has the discretion to remedy the error . . . which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. (citation, internal alterations, and internal quotation marks omitted).

2. Misjoinder and Severance

Rule 8 permits the government to join multiple offenses " if the offenses charged . . . are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan." Fed. R. Crim. P. 8(a). Rule 14 authorizes a district court to sever the joined offenses if it appears that the consolidation will prejudice the defendant. Fed. R. Crim. P. 14. The government has met the requirements of Rule 8(a) because the kidnapping and drug-trafficking offenses are part of a common scheme or plan. Prejudice arises when " there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). To determine whether prejudice arose as a result of the joinder, we " consider such factors as whether spillover evidence would incite or arouse the jury to convict on the remaining counts, whether the evidence was intertwined, the similarities and differences between the evidence, the strength of the government's case, and the ability of the jury to separate the evidence." United States v. Dale, 429 F.App'x 576, 579 (6th

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Cir. 2011) (citing United States v. Rooney, 37 F.3d 847, 855--56 (2d Cir. 1994); United States v. Pelullo, 14 F.3d 881, 898--99 (3d Cir. 1994); United States v. Murphy, 836 F.2d 248, 256 (6th Cir. 1988)).

Santana cannot show that the joinder of the cocaine counts with the kidnapping counts prejudiced his defense. Santana concedes that the charges were interrelated. But he contends that his role in the kidnapping venture was minor, and therefore trying the two charges together made Santana seem like a hard-core drug trafficker when he was small-time participant. Had the charges been tried separately, he argues, the jury would have been able to evaluate his minimal role in the kidnapping more dispassionately. Santana, however, needs to offer more than conclusory statements to show that the joinder prejudiced his defense. See United States v. Hang Le-Thy Tran, 433 F.3d 472, 478 (6th Cir. 2006). The jury's demonstrated ability to compartmentalize the evidence and evaluate how the evidence applies to separate, interrelated charges undermines Santana's prejudice argument because the jury acquitted Espinoza of Count 1 and Respardo-Ramirez of Count 5. Santana has not met his burden to show that the joinder of the counts prejudiced his defense. Accordingly, the joinder of the kidnapping and drug-trafficking counts was not error, let alone plain error.

C. The Sufficiency of the Evidence that Respardo-Ramirez Joined the Cocaine Conspiracy

Respardo-Ramirez challenges the sufficiency of the evidence to support a conviction for Count 1, conspiracy to possess with intent to distribute cocaine. When reviewing the sufficiency of the evidence after a jury votes to convict, we review the evidence in the light most favorable to the prosecution and determine whether " any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Lutz, 154 F.3d 581, 587 (6th Cir. 1998) (quoting United States v. Atkin, 107 F.3d 1213, 1218 (6th Cir. 1997)).

To find Respardo-Ramirez guilty of a conspiracy under 21 U.S.C. § 846 the government had to prove (1) that there was an agreement to violate federal narcotics laws, (2) that Respardo-Ramirez had knowledge of and the intent to join the conspiracy, and (3) that Respardo-Ramirez participated in the conspiracy. See United States v. Welch, 97 F.3d 142, 148 (6th Cir. 1996). " A tacit or material understanding among parties to a conspiracy is sufficient to establish agreement." United States v. Beals, 698 F.3d 248, 259 (6th Cir. 2012). Circumstantial evidence may establish an agreement if a reasonable interpretation of the evidence is that a defendant participated in a common plan. Id.

The only evidence linking Respardo-Ramirez to the drug conspiracy is Bravo-Garcia's testimony. Bravo-Garcia testified that Respardo-Ramirez delivered cocaine to Bravo-Garcia on behalf of Soto approximately twenty times. Moreover, Bravo-Garcia stated that Respardo-Ramirez was at the garage where Soto and the others brought Enriquez-Enriquez and Victor after the first trip to Detroit. And Respardo-Ramirez remained in the garage to guard Victor while Soto and the others returned to Detroit to rob Freeman. We believe therefore that a reasonable jury could have concluded that the plots to rob Freeman and to kidnap Enriquez-Enriquez were all part of a plan to help Soto collect a drug debt, and thus related to the drug conspiracy.

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The district court concluded that Bravo-Garcia's testimony alone was sufficient to allow a reasonable jury to conclude that Soto and Respardo-Ramirez had an agreement. R. 515 at 9 (Dist. Ct. Op. & Order) (Page ID #3452). There is no reason to disturb that finding. " Testimony by co-conspirators alone can be sufficient to prove the existence of a conspiracy." United States v. Copeland, 321 F.3d 582, 600 (6th Cir. 2003).

Respardo-Ramirez raises reasons to doubt Bravo-Garcia's testimony, namely that Bravo-Garcia mentioned Respardo-Ramirez's involvement in the conspiracy only after agreeing to cooperate with the government and entering plea negotiations. But there is nothing in the record that leads us to believe that no reasonable jury could find him credible. Accordingly, there is sufficient evidence for a rational jury to find that Respardo-Ramirez participated in the conspiracy to distribute narcotics.

D. Respardo-Ramirez's Variance Claim

Respardo-Ramirez argues that the district court erred by admitting testimony and drug evidence related to the search and arrest of Valerie and John Boston. Special Agent Rande, with the Drug Enforcement Administration (" DEA" ), received information from a confidential informant about a GMC van with hidden compartments designed to transport narcotics. A magistrate judge approved Rande's application for a warrant to place a GPS tracking device on the van. The DEA tracked the van from Detroit, Michigan, to Dayton, Ohio, and then to Las Vegas, Nevada. The van was registered in Valerie Boston's name. On May 18 or 19, 2009, Nevada State Trooper Officer Moonin stopped and searched the van, uncovering cell phones, U.S. currency, cocaine, and firearms. After that search, the DEA received a warrant to wiretap the cell phone and monitored calls to Valerie Boston's phone. The intercepted phone calls included conversations with Freeman and Enriquez-Enriquez.

Respardo-Ramirez now argues that the admission of the drug evidence prejudiced him because it resulted in a variance between the indictment and the evidence presented at trial. He contends that the evidence established the existence of multiple drug conspiracies: the Freeman conspiracy and the Soto conspiracy. He claims that the admission of the evidence from the Nevada seizure confused the jury, and therefore the jury overlooked the lack of evidence connecting Respardo-Ramirez to either conspiracy and, instead, transferred the Bostons' guilt onto Respardo-Ramirez.

" Ordinarily, this court reviews de novo the question of whether a variance has occurred." United States v. Adams, 722 F.3d 788, 805 (6th Cir. 2013). But if the defendant argues that there was a variance for the first time on appeal, then we review for plain error. Id. The government contends that Respardo-Ramirez has waived his right to challenge the admission of the Nevada evidence and to assert that a fatal variance occurred, and that therefore we cannot review either claim. Appellee Br. at 34 (citing Olano, 507 U.S. at 732--33). In the government's view, Respardo-Ramirez " intentionally relinquish[ed] or abandon[ed] . . . a known right" to object to the admission of the evidence, Olano, 507 U.S. at 733 (internal quotation marks omitted), because he failed to object at trial to the introduction of the evidence seized in Nevada and his trial counsel eventually said he was " satisfied" with the district court's decision not to submit the two-conspiracy jury instruction. See R. 486 at 79--80

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(Trial Tr. Apr. 19, 2013) (Page ID #2165--66); R. 546 at 7 (Trial Tr. May 3, 2013) (Page ID #3981).

We need not decide the issue, however, because--even under plain-error review--Respardo-Ramirez would not prevail. Under that standard, we have discretion to remedy a clear or obvious error that affected a defendant's substantial rights. Puckett, 556 U.S. at 135 . There was not a plain or obvious error here. " In conspiracy cases, 'a variance constitutes reversible error only if . . . the indictment alleged one conspiracy, but the evidence can reasonably be construed only as supporting a finding of multiple conspiracies.'" Adams, 722 F.3d at 805--06 (quoting Caver, 470 F.3d at 235--36). Respardo-Ramirez fails to meet this standard and also fails to show the prejudice required to establish any impact on his substantial rights. His variance challenge therefore fails.

E. The Sufficiency of the Evidence of Specific Intent to Distribute Cocaine

Santana and Espinoza challenge their convictions for Count 2, aiding and abetting possession with intent to distribute cocaine. Santana argues that there was a variance between the indictment and the evidence. Espinoza argues that the government failed to present sufficient evidence of his specific intent to distribute the cocaine. Both appellants argue that although the evidence at trial established that Espinoza and Santana possessed 500 or more grams of cocaine, nonetheless they never intended to distribute the cocaine because the cocaine was just a ruse to lure Freeman to a meeting.

1. Variance

Santana couches his argument in terms of a fatal variance, but the government contends that Santana is actually challenging the sufficiency of the evidence. When the defendant-appellant " is really claiming that the evidence in this case was insufficient to convict him," we employ the typical sufficiency standard of review by viewing the evidence in the light most favorable to the government. United States v. Bearden, 274 F.3d 1031, 1040 (6th Cir. 2001). The gravamen of Santana's argument is that the government proved robbery--not possession with intent to distribute cocaine--because the government failed to prove the requisite specific intent to distribute cocaine. We agree with the government that Santana's argument is actually about the sufficiency of the government's evidence, and therefore we analyze his claim as a challenge to the sufficiency of the evidence.

2. Sufficiency of the Evidence

Santana and Espinoza argue that the government did not present sufficient evidence of their specific intent to distribute cocaine. Read together, 21 U.S.C. § § 841(a)(1) and 841(b)(1)(B)(ii)(II) prohibit " knowingly or intentionally . . . possess[ing] with intent to manufacture, distribute, or dispense" 500 grams or more of cocaine. It is a specific-intent crime; the government must prove that the defendants specifically intended to distribute the drugs. United States v. Hardy, 643 F.3d 143, 151 (6th Cir. 2011). Title 21 U.S.C. § 802(11) defines " distribute" as " to deliver (other than by administering or dispensing) a controlled substance." Subsection eight defines " deliver" as " the actual, constructive, or attempted transfer of a controlled substance." Id. § 802(8). The statute does not define " transfer." See id. § 802. Santana and Espinoza argue that a " transfer" requires an actual showing that a defendant intended to relinquish his superior right to exercise control over the

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narcotics. The government offers two arguments in response. First, it argues that " the statute does not require intent to permanently transfer control." Appellee Br. at 37. Second, the government argues that " [t]he jury could reasonably infer that Santana and Espinoza knew that Soto did not intend to allow them to keep the three kilograms of cocaine he provided as bait, but that they would have to return it to him or take it to a customer." Id. at 40.

We decline to address the appellants' statutory argument because we conclude that the evidence was sufficient to convict Espinoza and Santana even under the meaning of " transfer" they advocate. " [E]vidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Coleman v. Johnson, 132 S.Ct. 2060, 2064, 182 L.Ed.2d 978 (2012) (emphasis in original) (internal quotation marks omitted). That standard " requir[es] only that jurors draw reasonable inferences from basic facts to ultimate questions." Id. (internal quotation marks omitted). We agree with the government that a jury could reasonably infer that Santana and Espinoza aided and abetted Soto to possess cocaine with the intent to distribute it.

The evidence at trial established that the plot to rob Freeman was part of the broader drug-distribution conspiracy. The group went to Detroit to collect a drug debt after El Cartero disappeared without paying Soto for the drug delivery. Soto gave the group three kilograms of cocaine as bait. After the robbery in Detroit, Espinoza, Santana and the others began driving back to Chicago with the cocaine in Soto's car. The evidence established that Soto was in the cocaine business and sold Bravo-Garcia six to eight kilos of cocaine every week. In addition, Soto sold cocaine to Freeman, who cooked, packaged, and sold the cocaine to customers in Detroit. These facts are sufficient for the jury reasonably to infer that Espinoza and Santana would return the cocaine to Soto in Chicago, where it would be sold to other buyers like Bravo-Garcia and Freeman. Accordingly, Espinoza's and Santana's argument fails.

F. Sufficiency of the Evidence of a Forcible Transport Across State Lines

Respardo-Ramirez challenges the sufficiency of the evidence to support his conviction on Count 6, kidnapping in violation of 18 U.S.C. § 1201. Respardo-Ramirez argues that there is no evidence to support a finding that the kidnapping victims did not consent to the transportation across state lines. If the victims were released before crossing state lines from Michigan into another state, or if the victims consented to crossing state lines, then the government's proof fails. See United States v. Toledo, 985 F.2d 1462, 1467 (10th Cir. 1993); United States v. Dixon, 592 F.2d 329, 340 (6th Cir. 1979) (citing the elements of kidnapping for 18 U.S.C. § 1201(a)).

We turn to the evidence in the record. Gudino and Bravo-Garcia testified that they pointed guns at Enriquez-Enriquez and Victor to force them into the van. Santana, Ramirez, and Espinoza used zip ties and tape to bind Enriquez-Enriquez and Victor, and the victims' hands were still tied behind their backs when they arrived in Chicago. Based on that evidence, a reasonable jury could conclude that the victims' hands were tied when Santana, Ramirez, and Espinoza transported them across state lines. And it is reasonable to infer that Enriquez-Enriquez and Victor did not consent to

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being tied up in the van as they crossed the borders of Michigan, Indiana, and Illinois. Thus, we reject Respardo-Ramirez's argument.

G. Sufficiency of the Evidence of Aiding and Abetting the Brandishing of a Firearm

Espinoza and Respardo-Ramirez challenge the sufficiency of the evidence to support their convictions on Count 7, brandishing a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c).

Espinoza challenges the sufficiency of the evidence establishing that he aided and abetted the brandishing of a firearm in furtherance of a drug-trafficking crime. He argues that the government failed to prove that he had the requisite specific intent to distribute cocaine because the jury acquitted him of conspiracy to distribute cocaine. Because we hold that the evidence is sufficient to support Espinoza's conviction on Count 2, possession with intent to distribute 500 or more grams of cocaine, supra Section E, there was sufficient evidence for a rational jury to find that Espinoza had the specific intent to distribute cocaine. Thus, there is sufficient evidence that he aided and abetted the brandishing of a firearm in furtherance of a drug-trafficking crime.

Respardo-Ramirez also challenges the sufficiency of the evidence for his conviction on Count 7, brandishing a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c).[3] Unlike Espinoza, Respardo-Ramirez was not charged or convicted on Count 2. In his case, the predicate offense was the conspiracy to possess with intent to distribute cocaine.

There was no evidence that Respardo-Ramirez owned, possessed, or used the firearms listed in the indictment. Santana, Espinoza, Ramirez, Gudino, and Bravo-Garcia brandished the firearm in Detroit, but Respardo-Ramirez was in Chicago at the time the others brandished their guns. Instead, the grand jury charged Respardo-Ramirez as an aider and abettor of the firearm brandishing.

To find a defendant criminally liable as an aider and abettor under 18 U.S.C. § § 2 and 924(c), the government must offer sufficient proof that the defendant " (1) [took] an affirmative act in furtherance of that [drug trafficking] offense, (2) with the intent of facilitating the offense's commission." Rosemond v. United States, __ U.S. __, 134 S.Ct. 1240, 1245, 188 L.Ed.2d 248 (2014). Liability attaches even where the defendant aids " only one (or some) of a crime's phases or elements." Id. at 1247. Thus, Respardo-Ramirez's conviction must stand if, viewing the evidence in the light most favorable to the government, there is evidence that he " facilitat[ed] either the drug transaction or the firearm use (or of course both)." Id. There is one limitation: the government must also prove that the defendant knew in advance " that one of his confederates will carry a gun" to further the drug offense. Id. at 1249.

Even though the government did not charge Respardo-Ramirez for possession of cocaine with intent to distribute it, the grand jury charged him for joining a conspiracy to distribute cocaine. Thus, we must affirm the firearm conviction if there is sufficient evidence from which a reasonable

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jury could find that the fake drug deal with Freeman furthered the drug conspiracy, and that Respardo-Ramirez had foreknowledge that his confederates would brandish guns.

We return to the record. Bravo-Garcia testified that Respardo-Ramirez had a gun in the garage in Chicago where the confederates questioned and held Victor and Enriquez-Enriquez. Bravo-Garcia also stated that Respardo-Ramirez was present during the planning meeting for the second trip to Detroit. While the group went to Detroit for the second time, Respardo-Ramirez guarded the kidnapping victim who remained in Chicago--an act that helped the people involved in the fake drug deal because none of them had to remain in Chicago to guard Victor. From this evidence we conclude that there was sufficient evidence to find that Respardo-Ramirez knew in advance that his accomplices had firearms that they would use to further the conspiracy to distribute cocaine.

Moreover, we hold that the evidence at trial was sufficient to establish that those who brandished the firearms did so to further the drug conspiracy. Enriquez-Enriquez and Victor's kidnapping and the heist of Freeman were all planned to further the broader conspiracy to sell cocaine in Chicago and Detroit. We must draw inferences in favor of the government, and therefore it is not unreasonable to conclude that Respardo-Ramirez knew that his friends had guns, that they intended to use cocaine to rob Freeman, and that the robbery related to the conspiracy. Thus, the district court did not err when it concluded that the evidence was sufficient to support a conviction on Count 7.

H. Sentencing Issue: Second or Successive Convictions under § 924(c)

Santana and Soto challenge their sentences. They argue that the district court violated the Sixth Amendment when it imposed a mandatory twenty-five-year sentence to run consecutively with the other sentences without a jury finding that the convictions were second or successive.

1. Standard of Review

We review de novo legal determinations about whether a prior offense triggers a mandatory minimum. United States v. Davis, 751 F.3d 769, 773 (6th Cir. 2014). When the defendant does not properly preserve the error, we review the district court's sentencing determination for plain error. Id. The government agrees that Soto properly preserved his challenge to the application of the mandatory minimum sentence. Consequently, we will review Soto's challenge de novo.

With respect to Santana, however, the government disagrees about the proper standard of review. " When determining whether a party has adequately preserved a claim for appeal, this court examines the record with an eye to the realities of the facts and circumstances of each sentencing proceeding." Davis, 751 F.3d at 773 (internal quotation marks omitted). In his sentencing memorandum, Santana did not raise a Sixth Amendment challenge to the imposition of a mandatory minimum on the basis that the jury did not find consecutive offenses. But Santana's counsel raised his Sixth Amendment objection at the sentencing hearing. And the district court considered and ruled on the objection. Thus, Santana adequately preserved his Sixth Amendment challenge, and we review the district court's holding de novo.

2. Jury Fact-Finding and the Sixth Amendment

Although the district court acknowledged that it is " fair to characterize what

Page 708

happened as a single course of conduct," it held that the evidence established two separate offenses on two different days. R. 534 at 26 (Santana Sentencing Hr'g) (Page ID #3591); R. 549 at 19--20 (Soto Sentencing Hr'g) (Page ID #4138--39). Santana and Soto argue that whether there were two distinct offenses or one course of conduct was a question for the jury--not a judge--to decide. That judicial factfinding, they argue, violated the Sixth Amendment because the jury verdict forms do not establish whether either act was a second or subsequent offense. The jury found Soto and Santana guilty of Count 7, brandishing a firearm during and in relation to a drug trafficking crime, and Count 8, brandishing a firearm during and in relation to a crime of violence. The wording of both counts reference the same firearms and the same date ranges. The counts differ in that Count 7 alleges that the defendants brandished the firearms in furtherance of a drug-trafficking crime, whereas Count 8 related to a " crime of violence," namely the kidnapping. Compare R. 413 at 6 (4th Superseding Indictment) (Page ID #1743), with id. at 7 (Page ID #1744). Thus, based on the indictment and verdict form alone, it is not clear that one § 924(c) offense is prior or subsequent to the other.

The Sixth Amendment provides that " [i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . ." U.S. Const. amend. VI. The right to an impartial jury trial combined with the Due Process Clause of the Fifth Amendment requires that the government prove " each element of a crime" to a jury " beyond a reasonable doubt." Alleyne v. United States, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013). If a fact is " an 'element' or 'ingredient' of the charged offense," then a jury must find that fact beyond a reasonable doubt. Id. at 2158. " Facts that increase the mandatory minimum sentence are . . . elements and must be submitted to the jury and found beyond a reasonable doubt." Id. " It is impossible to dissociate the floor" and ceiling " of a sentencing range" from the ingredients of the charged offense. Id. at 2160. When a fact " alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury." Id. at 2162. Juries need not find facts that influence a judge's discretion to sentence within the prescribed range. See id. at 2163. Soto's and Santana's claim turns on whether a finding that an offense is a second or subsequent § 924(c) conviction is an element of a charged offense that the government must prove beyond a reasonable doubt, or whether it is a fact that affects judicial discretion. Accordingly, we turn to the statutory text.

Section 924(c)(1) requires judges to impose various mandatory minimum sentences for using a deadly or dangerous weapon " during and in relation to any crime of violence or drug trafficking crime." 18 U.S.C. § 924(c)(1)(A). The sentencing scheme begins with a five-year mandatory term of imprisonment, id. § 924(c)(1)(A)(i), and increases to seven years " if the firearm is brandished," id. § 924(c)(1)(A)(ii), and ten years " if the firearm is discharged." Id. § 924(c)(1)(A)(iii). However, " [i]n the case of a second or subsequent conviction under this subsection," then the judge must impose a sentence of not less than twenty-five years. Id. § 924(c)(1)(C)(i). In Alleyne, the Supreme Court held that, if a judge imposes the seven-year mandatory minimum sentence required for brandishing a weapon under § 924(c)(1)(A)(ii), then a jury must find beyond a reasonable doubt that the firearm was brandished.

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133 S.Ct. at 2163. The logical extension of Alleyne strongly suggests that a jury must find whether a § 924(c) conviction is second or subsequent before the judge can increase the minimum sentence from five to twenty-five years.

It is not so simple. The Supreme Court left one exception to this general proposition: judges may find the fact that the defendant has a prior conviction. Id. at 2160 n.1 (citing Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998)). And a " prior conviction" includes a finding of guilt even " when a defendant is convicted of multiple offenses in the same proceeding." United States v. Washington, 714 F.3d 962, 970 (6th Cir. 2013) (citing Deal v. United States, 508 U.S. 129, 135--36, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993)). Thus, a judge may find that the defendant has been convicted of a second or subsequent § 924(c) offense even when the convictions arise from the same trial and even though Almendarez-Torres " stand[s] on shifting sands." United States v. Mack, 729 F.3d 594, 609 (6th Cir. 2013).

Soto's and Santana's Sixth Amendment claim presents a different situation, however, because, unlike our prior cases, there was nothing in the indictment from which to determine the dates of the two offenses. In Mack, the defendant was charged with three carjackings and armed robberies on three different dates. Id. at 598. In Davis, we adhered to the holding of Almendarez-Torres, but the terms of the prior judgments provided the temporal information necessary to find that the convictions were second and subsequent because we could identify the date of the offense from the judgment. See 751 F.3d at 774.

We do not need to decide whether this case presents an Alleyne issue, however, because any error was harmless. An error is harmless when " it is clear to us beyond a reasonable doubt that the outcome would not have been different even if the district court had instructed the jury on the element [in question] and required the jury to make a finding on that element." Mack, 729 F.3d at 608.

Soto and Santana argue that a jury could have found that Counts 7 and 8 were all part of the same course of conduct. To determine whether § 924(c) offenses occurred on different occasions, we consider whether

(1) it is possible to discern the point at which the first offense is completed, and the subsequent point at which the second offense begins; (2) it would have been possible for the offender to cease his criminal conduct after the first offense, and withdraw without committing the second offense; or (3) the offenses are committed in different residences or business locations.

United States v. Paige, 634 F.3d 871, 873 (6th Cir. 2011) (internal quotation marks omitted).

Based on our review of the record, we believe that it is clear beyond a reasonable doubt that the convictions on Count 7 and Count 8 were separate offenses. We can identify the start and endpoint of each offense because the jury found Santana and Soto guilty of two separate offenses: Count 2, possession of cocaine with the intent to distribute it, and Count 6, kidnapping. The kidnapping--the predicate offense for Count 8--occurred on October 20, 2009. On October 22, 2009, Count 7's predicate drug-trafficking offense occurred. It is therefore logically consistent that the jury found Soto and Santana guilty of the two firearms offenses linked with the two predicate offenses, and thus any Alleyne error was harmless.

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III. CONCLUSION

For the reasons explained in this opinion, we AFFIRM the district court's judgments.


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