F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
November 29, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 05-3103
v. (D . of Kan.)
NOE ESPINO, JR., also known as (D.C. No. 03-CR-20051-08-JW L)
Junior,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before M cCO NNELL, B AL DOCK , and TYM KOVICH, Circuit Judges.
Noe Espino appeals his jury conviction for drug conspiracy charges arising
from a methamphetamine distribution ring in Kansas City, Kansas. He argues
three issues on appeal: (1) the evidence presented at trial was insufficient to
support his conviction; (2) the district court improperly admitted evidence of a
*
Appellant’s motion to submit on briefs was granted after the panel
examined the briefs and the appellate record to determine unanimously that oral
argument w ould not be of material assistance in the determination of this appeal.
See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
murder on the basis it was connected to the drug conspiracy; and (3) the sentence
imposed by the district court violated his Sixth Amendment rights. 1
W e AFFIRM the jury’s verdict on sufficiency grounds, and the district
court’s decision to admit the murder evidence. W e also A FFIRM the Espino’s
sentence as constitutional.
I. Background
Espino was indicted on drug conspiracy charges in 2003, and tried along
with two co-defendants, Carlos Portillo-Quezada and Kenneth W aterbury. The
government contended the three men were part of a large-scale methamphetamine
distribution ring in Kansas City, Kansas. After a jury trial, Espino was convicted
of conspiracy to distribute in excess of 500 grams of methamphetamine in
violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii) and 846.
Portillo-Q uezada and W aterbury were also convicted on drug distribution charges.
1
Espino’s notice of appeal referred to “all motions and objections”
presented at trial. Two of the post-trial motions— for acquittal under Rule 29, and
for a new trial under Rule 33— were untimely filed. W hile the district court
considered them on the merits, it should not have. The government objected to
the motions as untimely, and under the United States Supreme Court’s decision in
Eberhart v. United States, 546 U.S. 12 (2005), the motions should have been
dismissed. In this appeal, however, Espino elsewhere preserved his sufficiency of
evidence objection and evidentiary objection. Espino made a proper Rule 29
motion for acquittal at the close of the prosecution’s case, and elected not to
present evidence in his defense. That objection adequately preserved his right to
appeal the sufficiency of the government’s case against him. United States v.
Calderon, 348 U.S. 160 (1954); United States v. Delgado-Uribe, 363 F.3d 1077,
1081–83 (10th Cir. 2004). He objected to the murder evidence in a motion prior
to trial and at the time the evidence was received by the trial court.
-2-
W e have upheld both of those convictions, see United States v. Portillo-Quezada,
___ F.3d ___ (10th Cir. 2006); United States v. Waterbury, ___ F’A ppx. ____.
M any of the background facts outlined in those cases are pertinent to Espino’s
claims on appeal, and will be repeated only as necessary.
To summarize, at trial the prosecution contended that Portillo-Quezada
managed a large scale drug distribution operation along w ith his two brothers,
Eloy and Raul Portillo. W aterbury was a buyer and seller of drugs, who also
assisted the conspiracy by helping customers locate and visit “storefront”
properties w here drugs were distributed. Numerous other individuals were
involved in the production, distribution, and delivery of the drugs. Espino
performed at least two functions for the conspiracy: (1) he assisted in buying and
selling drugs; and (2) he played an enforcement role in the conspiracy, including
participation in a murder against a person who had stolen drugs from the
conspiracy and had disclosed the identity of a co-conspirator to police
investigators. The case against Espino consisted of the testimony co-conspirators,
as w ell as his confession to taking part in the murder.
II. Discussion
A. Sufficiency of the Evidence
Espino first argues that the evidence presented at trial was insufficient for a
reasonable jury to find him guilty of conspiracy to possess and distribute drugs.
W e review sufficiency of the evidence de novo, United States v. Wiseman, 172
-3-
F.3d 1196 (10th Cir. 1999), and weigh the evidence presented in the light most
favorable to the verdict. The test is whether a reasonable jury could conclude the
defendant w as guilty beyond a reasonable doubt. United States v. M cIntosh, 124
F.3d 1330, 1334 (10th Cir. 1997). W e defer to the jury’s credibility
determinations and “its conclusions about the weight of the evidence.” United
States v. Allen, 235 F.3d 482, 492 (10th Cir. 2000). A reasonable jury can find a
defendant guilty beyond a reasonable doubt in light of both “‘the direct and
circumstantial evidence, along with reasonable inferences therefrom.’” United
States v. Nguyen, 413 F.3d 1170, 1175 (10th Cir. 2005) (quoting United States v.
Nelson, 383 F.3d 1227, 1229 (10th Cir. 2004)). Because Espino did not present a
defense, we review the record as it existed at the close of the government’s case.
See United States v. Delgado-Uribe, 363 F.3d 1077, 1082 (10th Cir. 2004).
To prove conspiracy, the government must show Espino: (1) agreed with
others to engage in drug distribution; (2) knew about the existence of the
conspiracy; (3) participated voluntarily; and (4) was interdependent with other co-
conspirators. Delgado-Uribe, 363 F.3d at 1083. Espino argues that the
government’s evidence was insufficient to prove the second and third elements of
conspiracy— that he knowingly and voluntarily participated in the
methamphetamine distribution ring. Viewing the evidence in the light most
favorable to the jury’s verdict, we disagree.
-4-
Espino argues that the prosecution presented no direct evidence of his
participation in the conspiracy, and that the circumstantial evidence presented was
not substantial. The prosecution’s theory, in contrast, was that Espino served the
conspiracy by buying and selling drugs, and enforcing discipline on its behalf.
At trial, the prosecution presented the testimony of Carl Rieger,a principal
deputy of Portillo-Quezada’s who assisted the conspiracy by renting properties
for drug distribution, handling money generated by sales, and buying and selling
drugs. Rieger was, in short, intimately involved in the conspiracy. He testified
that Espino was both known to purchase large quantities of drugs on a repeated
basis and known as a “regular distributor” for the Portillo-Quezada
methamphetamine ring. Supp. Vol. IV at 72–73, 197. He participated, along with
Portillo-Quezada, in drug transactions where Espino was present. Espino was a
frequent visitor to the rental house where the conspiracy distributed drugs. He
observed Espino brandishing weapons during drug transactions.
Another co-conspirator, Patrick Loffredo, testified that he first met Espino
when he and another co-conspirator picked up methamphetamine from Espino.
Tommy Davidson, another co-conspirator, testified at trial that Espino was
sometimes present in a Portillo-Q uezada property during drug transactions.
Davidson told the jury that Espino would watch the transactions while holding
weapons, and that he interpreted this behavior as intended to intimidate drug
buyers.
-5-
M ore directly, the jury heard evidence that Espino confessed to his
participation in the murder of Bruce Andrews. Police suspected Andrews had
been killed by the Portillo-Quezada drug ring because he had stolen drugs from
the conspiracy and revealed the identity of Portillo-Q uezada’s brother to police.
Espino voluntarily confessed to his role in the crime after surrendering to police
several days after the police had raided a drug “storefront” and arrested Portillo-
Q uezada and Waterbury. In his confession, he told police he helped lure Andrew s
to the scene of the murder, watched as Portillo-Quezada killed him with an assault
weapon, helped clean the car and took it to a different location where it was
burned. Andrews’s body was left at the scene of the murder to be found.
Prosecutors contended at trial that the murder furthered the objectives of the
conspiracy and was designed to intimidate others who may have wished to steal
drugs or cooperate with police.
Espino’s role in the murder was corroborated by other witnesses, including
Rieger. He testified Portillo-Quezada told him that Espino was paid in $4000 in
cash and stolen car parts for his role in the murder. Portillo-Quezada’s role as the
triggerman w as confirmed by the testimony of other witnesses.
A jury may rationally infer the existence of a conspiracy to distribute drugs
on the basis of frequent contacts among co-conspirators and from “their joint
appearances at transactions and negotiations.” United States v. Evans, 970 F.2d
663, 669 (10th Cir. 1992). M oreover, a jury may convict a defendant of
-6-
conspiracy on the uncorroborated testimony of a single co-conspirator, so long as
the jury is properly instructed. United States v. M agallanez, 408 F.3d 672, 682
(10th Cir. 2005), cert. denied, 126 S. Ct. 468 (2005). Once the existence of a
conspiracy is shown, an individual conspirator’s connection to the enterprise need
only be “slight, if there is sufficient evidence to establish a connection beyond a
reasonable doubt.” United States v. M endoza-Salgado, 964 F.2d 993, 1006 (10th
Cir. 1992).
Viewed in the light most favorable to the jury, the connection between
Espino and the Portillo-Q uezada drug distribution ring is more than slight.
Evidence was presented that Espino was known to distribute methamphetamine
for Portillo-Quezada, that his role in the conspiracy was understood to be that of
an enforcer, and that he pursued this role to the point of furthering the
conspiracy’s interest through murder. On this record, a rational jury could
conclude Espino’s participation in the conspiracy was knowing and voluntary.
Accordingly, we affirm the district court’s denial of Espino’s motion for
judgment of acquittal.
B. M urder Evidence
Prior to trial, Espino filed a motion in limine to prevent the presentation of
testimony and evidence regarding Andrews’s murder, arguing that admission of
such evidence at trial would violate Federal Rule of Evidence 404(b). The district
court denied this motion before trial, holding that the evidence was inherent to the
-7-
conspiracy and therefore not subject to Rule 404(b). At trial Espino renewed his
objection and sought a mistrial claiming that the graphic nature of some of the
evidence was irrelevant and unduly prejudicial, and sought a mistrial.
On appeal, Espino renews these arguments. The government contends that
the murder was an integral part of the conspiracy. Portillo-Quezada believed that
Andrews had stolen drugs from the conspiracy and had revealed the identity of his
brother to police. In their view, the murder evidence showed the extent to which
the conspirators would go in collecting debts and punishing those who crossed the
organization.
In a companion case, United States v. Portillo-Quezada, ___ F.3d ___ (10th
Cir 2006), we reviewed the admissibility of the murder evidence. For the same
reasons, we conclude the district court did not err in admitting the evidence or
declining to declare a mistrial. In sum, (1) the evidence was admissible as
uncharged acts committed in furtherance of the conspiracy; (2) the evidence was
intrinsic to the drug conspiracy, showing steps the conspirators w ould take to
collect debts and punish cooperation with police; and (3) in context, the testimony
was not unduly prejudicial.
Accordingly, the district court did not err in admitting the evidence and
refusing to declare a mistrial.
C. Sentencing Error
-8-
Espino also argues that the sentence imposed by the district court violates
his Sixth Amendment rights. W e review his claim de novo. United States v. Doe,
298 F.3d 1254 (10th Cir. 2005).
At sentencing, the district court increased Espino’s sentence to life in
prison because of his participation in the murder of Bruce A ndrew s. The court
stated that the sentencing factors laid out in 18 U.S.C. § 3553(a), and especially
§ 3553(a)(2) (concerning the need for the sentence imposed to reflect the
seriousness of the offense), made a life sentence reasonable and just in light of
the circumstances surrounding the crime. See USSG §§ 2D1.1(d)(1) and 2A1.1.
Espino argues his sentence violates the Sixth Amendment because the
enhancement was based upon his participation in a murder (1) for which he was
never charged, and (2) that was never proven to a jury beyond a reasonable doubt.
He argues this conflicts with United States v. Booker, 543 U.S. 220 (2005), where
the Supreme Court held that the Sentencing Guidelines violate the Sixth
Amendment to the extent they compulsorily require courts to enhance sentences
on the basis of judicial factfinding. Id. at 233–34. W e disagree.
“W hen a trial judge exercises his discretion to select a specific sentence
within a defined range, the defendant has no right to a jury determination of the
facts the judge deems relevant.” Id. In our cases interpreting Booker, we have
repeatedly recognized that sentence enhancements do not violate the Sixth
Amendment where the sentencing court applies the G uidelines in an advisory
-9-
fashion. United States v. Bustamante, 454 F.3d 1200, 1202 (10th Cir. 2006);
United States v. Dalton, 409 F.3d 1247, 1252 (10th Cir. 2005); United States v.
M agallanez, 408 F.3d 672, 685 (10th Cir. 2005); United States v. Lawrence, 405
F.3d 888, 890 (10th Cir. 2005). In addition, after Booker, a properly-calculated
Guideline sentence is “entitled to a rebuttable presumption of reasonableness.”
United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam).
In light of these holdings, no constitutional violation exists in this case.
Espino has no right to a jury determination of the facts the trial judge deems
relevant in arriving at his sentence, so long as that sentence is reasonable.
M oreover, it is abundantly clear from the record that Espino participated in
Andrews’s murder— the district court reviewed at sentencing his taped confession
detailing his role in the homicide. Since Espino’s sentence was within the
Guidelines range, it is presumptively reasonable under Kristl. Because Espino
has made no argument to rebut this presumption, we find his sentence reasonable
under 18 U.S.C. § 3553(a).
III. Conclusion
For the foregoing reasons, we AFFIRM the rulings of the district court.
ENTERED FOR THE COURT
PER CURIAM
-10-