F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 30, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 05-6398
v. (D.C. No. 04-CR-179-6-R)
(W .D. Okla.)
A D RIA N MA C IA S C ASTR O,
Defendant-Appellant.
OR DER AND JUDGM ENT *
Before KELLY, HOL LOW A Y, and GORSUCH, Circuit Judges.
Follow ing a trial in w hich he w as found guilty of 11 narcotics felonies,
Adrian M acias Castro appeals to us arguing that the district court erroneously
failed to suppress incriminating evidence, legally insufficient evidence exists to
sustain his conviction, and the district court engaged in improper fact finding
during sentencing. Constrained to conclude that M r. Castro lacks standing to
challenge the search at issue, we affirm the district court’s denial of M r. Castro’s
suppression motion and affirm as well on the remaining issues before us.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Oklahoma City gang member Jason “Joker” Lujan agreed to cooperate w ith
authorities after his arrest in 2003, volunteering that several members of a
Hispanic gang from California, later identified as the Compton Varrio Tortilla
Flats, including “Boxer,” “Lalo,” and M r. Lujan’s sister-in-law, Jennifer Lujan,
had moved to Oklahoma City to deal large quantities of methamphetamine.
Specifically, M r. Lujan explained that Boxer, later identified as Dennis Emerson
Gonzalez, had already left Oklahoma City but still ran the operation; Lalo, later
identified as Eduardo Verduzco, delivered drugs to O klahoma City at M r.
Gonzalez’s direction; M s. Lujan distributed the drugs in O klahoma City; and M r.
Gonzalez’s girlfriend, “M ousey,” stored the drugs in her apartment.
In cooperation with the police, M r. Lujan called his sister-in-law to arrange
for a purchase of methamphetamine. M s. Lujan agreed to the deal and traveled to
M r. Lujan’s home to complete the transaction. On her way there, she was
followed by police, stopped for a traffic violation, and then arrested for failing to
produce a valid driver’s license. Officers searching her vehicle found $1,220.25
in cash, 12 grams of methamphetamine, a drug ledger, and two cell phones.
Purportedly because they feared that fellow members of the conspiracy would
grow suspicious when M s. Lujan didn’t arrive at M r. Lujan’s home and might
proceed to destroy evidence, the police rushed to M s. Lujan’s apartment. There,
they knocked on the door and received no response, though they heard several
people moving about inside the residence. Officers proceeded to kick down the
-2-
door and place the occupants they found inside the apartment in the back of police
cruisers to “secure” the scene. They then sought and obtained a search warrant,
subsequently finding and seizing a substantial quantity of methamphetamine from
M s. Lujan’s apartment and other sources related to the gang’s operations. Further
investigation by the police led to the discovery of a loaded pistol which was
eventually tied to M r. Castro.
A federal grand jury eventually charged M r. Castro and eleven others w ith
79 felony counts related to the drug ring. W ith respect to M r. Castro, the grand
jury returned 11 charges ranging from participating in a drug conspiracy to being
a felon unlawfully in possession of a firearm to engaging in a money laundering
scheme. M r. Castro moved to suppress the evidence obtained from M s. Lujan’s
apartment but, after an evidentiary hearing, the district court denied his motion,
finding that M r. Castro had no reasonable expectation of privacy in M s. Lujan’s
residence. D.E. 207 (Order at 2). Eight of the eleven defendants indicted as part
of the drug ring eventually pled guilty and cooperated w ith the government. M r.
Castro, along with two associates, elected to proceed to trial. After two weeks of
proceedings, the jury returned guilty verdicts against M r. Castro on all of the
counts with which he was charged.
In assessing M r. Castro’s appeal of the district court’s disposition of his
motion to suppress, we review the evidence in the light most favorable to the
United States, accepting unless clearly erroneous the district court’s factual
-3-
findings and reviewing de novo its Fourth A mendment reasonableness
determination. United States v. Angevine, 281 F.3d 1130, 1133 (10th Cir. 2002)
(internal quotation omitted). M r. Castro bears the burden of establishing a Fourth
Amendment violation. See Rakas v. Illinois, 439 U.S. 128, 131 n.1 (1978).
Even view ing the facts in the light most favorable to the government, we
remain troubled by M r. Castro’s allegation that “the exigency was created by the
police” who followed and stopped M s. Lujan for a traffic infraction, then
bootstrapped that stop into a felt need to raid and secure her apartment before
others in the gang might get wind of her detention. Law enforcement may not,
consistent with our constitutional charter, create their own exigencies to avoid the
necessity of a warrant to enter a person’s home. See United States v. Bonitz, 826
F.2d 954, 957 (10th Cir. 1987) (rejecting government’s argument that exigent
circumstances justified a warrantless search where “the only immediate danger
that existed was created by the officers themselves”). Our difficulty in affording
M r. Castro relief in this case is that the Supreme Court has also repeatedly
instructed that Fourth Amendment rights are personal ones. That is to say, in
order to establish standing to challenge a search as a Fourth Amendment
violation, a “defendant must prove ‘a legitimate expectation of privacy’ in the
place searched,” Angevine, 281 F.3d at 1134 (quoting Rakas, 439 U.S. at 143),
something which requires a showing of both a “‘subjective expectation of privacy
in the area searched,’” and a showing that this expectation is “‘one that society is
-4-
prepared to recognize as reasonable.’” Id. (quoting United States v. Anderson,
154 F.3d 1225, 1229 (10th Cir. 1998)). Thus, M s. Lujan’s right to contest the
validity of the police action with respect to the search of her own apartment does
not necessarily confer standing to M r. Castro to do the same.
M r. Castro argues for standing by stressing that he was M s. Lujan’s former
boyfriend and that mail addressed to him was found in the apartment during the
raid. M r. Castro, however, neglects to point us to other highly pertinent facts in
the record that augur against standing. The district court expressly found that M r.
Castro shot a gun at M s. Lujan three months prior to the challenged search and
that, after the shooting, M r. Castro moved out of the apartment, away from
Oklahoma City, and back to California. D.E. 207 (Order at 2.) The district court
also noted that only M s. Lujan appeared as the lessee on the apartment’s lease.
Id. Finally, the government produced evidence that M r. Castro was not at the
residence at the time of its search, Supp. Hr’g Tr. at 22; that M r. Castro had no
clothing at the residence, id. at 24; and that M r. Castro did not pay any bills at the
residence, id. Given these additional facts, we are unable to say the district court
erred in its factual finding that M r. Castro was sent packing after assaulting his
girlfriend and thus had no objectively reasonable expectation of privacy
remaining in the apartment three months later, at the time of the raid. Indeed,
courts have repeatedly held that individuals in analogous circumstances lack
Fourth Amendment standing. Com pare, e.g., Bonds v. Cox, 20 F.3d 697, 701 (6th
-5-
Cir. 1994) (homeowner “not occupying the house during the relevant time
period,” who allowed her son to live there while she was ill, had no expectation
of privacy in the house); with Trask v. Franco, 446 F.3d 1036, 1042 (10th Cir.
2006) (“[Both individuals] were living in the residence when the nonconsensual
search occurred and had a reasonable expectation of privacy in their home.”). 1
M r. Castro’s sufficiency of the evidence challenge is no more availing. In
review ing such challenges w e are obliged to view the evidence and all reasonable
inferences that can be derived from that evidence in the light most favorable to
the government, United States v. Ramirez, 479 F.3d 1229, 1249 (10th Cir. 2007)
(internal quotation omitted), and we have explained that this “‘restrictive standard
of review for a sufficiency of the evidence question provides us w ith very little
leeway.’” United States v. Sells, 477 F.3d 1226, 1235 (10th Cir. 2007) (quoting
United States v. Evans, 970 F.2d 663, 671 (10th Cir. 1992)).
M r. Castro does not point us to any specific element on w hich he contends
evidence was lacking, arguing rather more generically that the government’s drug
conspiracy case was based on “rather meager circumstantial inferences.” Aplt.
Br. at 19. But our precedent teaches that the government may meet its burden on
1
M r. Castro replies by commenting that “[t]here is no evidence that any
other person had moved into his bedroom nor taken his place in the relationship
with Jennifer Lujan.” Aplt. Br. at 10. But it is hardly the case that a former
boyfriend or spouse automatically retains a legitimate expectation of privacy in
the home of their “ex” until and unless someone “takes his place in the
relationship.”
-6-
the elem ents of each crime of conviction by either direct or circumstantial
evidence. Sells, 477 F.3d at 1235. And in this case the government offered
significant direct and circumstantial evidence of M r. Castro’s participation in the
drug ring. By way of example only, M s. Lujan personally testified to M r.
Castro’s involvement in the drug conspiracy, explaining, among other things, that
he arrived by bus from California in 2002 carrying a duffel bag, which he
delivered to M r. Gonzalez. After M r. Castro, M r. Gonzalez, and another co-
conspirator entered a bedroom with the bag, methamphetamine was brought out to
M s. Lujan. Trial Tr. at 562-63; see also id. at 784, 834. M s. Lujan also testified
that M r. Castro drove a Chevrolet Blazer carrying approximately two pounds of
methamphetamine from California to Oklahoma in July or August of 2003. Trial
Tr. at 613-15. W e have found evidence along these lines sufficient in other cases
to sustain convictions like M r. Castro’s. See, e.g., United States v. Small, 423
F.3d 1164, 1183-85 (10th Cir. 2005) (circumstantial evidence linking defendants
to each other sufficient for conviction of involvement in drug conspiracy); United
States v. Lauder, 409 F.3d 1254, 1259-60 (10th Cir. 2005) (circumstantial
evidence linking defendant to drugs sufficient for conviction of possession with
intent to distribute); United States v. Ramirez, 348 F.3d 1175, 1181-82 (10th Cir.
-7-
2003) (sufficient evidence to support conviction for conspiracy to possess with
intent to distribute). 2
On the firearm charge, likewise, M s. Lujan testified that on one occasion
M r. Castro pointed a gun at her, pointed it at her car, and then started shooting at
the car; this is sufficient for a jury to infer M r. Castro’s knowing possession of a
firearm and thus a violation of the statutory prohibition against felons possessing
firearms, particularly given M r. Castro’s stipulation to a prior felony conviction
and the government’s evidence that the firearm had been made in M assachusetts
and found in Oklahoma, thereby affording an interstate nexus. United States v.
Gorman, 312 F.3d 1159, 1163-64 (10th Cir. 2002) (“In a conviction of possession
of a firearm by a convicted felon pursuant to 18 U.S.C. § 922(g)(1), the
government must prove beyond a reasonable doubt: (1) the defendant was
previously convicted of a felony; (2) the defendant thereafter knowingly
possessed a firearm; and (3) the possession was in or affecting interstate
commerce.” (internal quotation omitted)).
W ith respect to the money laundering conspiracy charges, M r. Castro
argues that the government never produced evidence of an actual agreement
between him and other members of the gang. But M r. Castro’s argument fails to
2
M r. Castro also argues that M s. Lujan never actually saw M r. Castro with
drugs. That assertion is incorrect. M s. Lujan testified, for example, that she saw
M r. Castro and another co-conspirator take the back seat out of the Chevrolet
Blazer, revealing methamphetamine hidden in the seat. Trial Tr. at 613-15.
-8-
recognize our controlling precedent providing that “an agreement constituting a
conspiracy may be inferred from the acts of the parties and other circumstantial
evidence indicating concert of action for the accomplishment of a common
purpose.” United States v. Torres, 53 F.3d 1129, 1134 (10th Cir. 1995) (internal
quotation and alteration omitted). The government presented evidence that M r.
Castro did not report any income for the tax year 2003. It offered evidence that
M r. Castro accompanied M s. Lujan on at least one occasion when she wired drug
money through W estern Union. It produced evidence that M r. Castro himself
drove drug money from Oklahoma to California. A nd it supplied evidence that,
on individual wire transfers, M r. Castro used different telephone numbers and
listed different residential addresses, as well as testimony from an Internal
Revenue Service agent that the wire transfers by members of the conspiracy,
including M r. Castro, showed a pattern of money sent from Oklahoma to
California and Florida using false names and false addresses. Such evidence,
together with the evidence of M r. Castro’s involvement in the gang’s drug
operations, was sufficient under our case law for a jury to find M r. Castro guilty
beyond a reasonable doubt of the charged money laundering offenses. See
Torres, 53 F.3d at 1136-37; United States v. Garcia-Emanual, 14 F.3d 1469,
1473, 1476-78 (10th Cir. 1994); United States v. Dimeck, 24 F.3d 1239, 1242-43
(10th Cir. 1994).
-9-
At the conclusion of M r. Castro’s trial, the jury indicated on a special
verdict form that the amount of methamphetamine attributable to that conspiracy
was 500 grams “or more.” Later, at sentencing, the district court found, by a
preponderance of the evidence, that M r. Castro was personally involved with, and
for sentencing purposes responsible for, an amount of methamphetamine in excess
of 1.5 kilograms. Sent. Hr’g Tr. at 13. 3 M r. Castro argues that the district court
erred when it engaged in fact finding, independent of the jury, to ascertain the
precise quantity of drugs for which he bore responsibility. This argument,
however, runs afoul of our precedent expressly permitting district courts to make
factual findings of drug quantities in exactly these circumstances. See, e.g.,
United States v. Hall, 473 F.3d 1295, 1312 (10th Cir. 2007) (“Because the post-
Booker Guidelines are discretionary, a district court may continue to find facts,
including drug quantity, by a preponderance of the evidence.”); see also United
States v. M agallanez, 408 F.3d 672, 685 (10th Cir. 2005) (district court may make
finding of drug quantity by preponderance of evidence for purposes of
3
In doing so, the court noted that M r. Castro might reasonably be held
accountable for all the drugs flowing through the conspiracy given his intimate
involvement in the scheme, though it eventually chose to follow a more modest
course. Sent. Hr’g Tr. at 13.
- 10 -
determining guidelines range even where jury found lesser amount). Affirmed.
ENTERED FOR THE COURT
Neil M . Gorsuch
Circuit Judge
- 11 -
United States v. Castro
Combined Opinion