United States v. Siyam

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS April 28, 2009
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 07-3352
v.
(D.C. No. 06-CR-20008-JWL)
(D. Kan.)
MOUSA SIYAM,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before TACHA, HOLLOWAY, and HOLMES, Circuit Judges.

Mousa Siyam was convicted of conspiracy to possess and possession of

marijuana with the intent to distribute. He appeals his conviction, arguing that

the district court committed plain error in allowing over 200 kilograms of

marijuana that was seized from his vehicle to be displayed in the courtroom

during his trial. He also claims that there was insufficient evidence to sustain the

jury verdict on both counts. Lastly, he challenges his sentence and contends that

the district court erroneously calculated the drug quantity attributable to him and

*
This Order and Judgment is not binding precedent, except under the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.
erroneously denied his request for a minor role adjustment.

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We

exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

BACKGROUND

Mr. Siyam was a commercial limousine driver based in Atlanta, Georgia. In

December 2005, he was stopped by Trooper Phillips of the Kansas Highway Patrol.

Trooper Phillips had run the license tag on the limousine Mr. Siyam was driving and

found the license tag to be registered to another vehicle. 1 Mr. Siyam was

accompanied in the driver’s compartment by Terrence Bennett, the vehicle’s owner,

and, in a separate, passenger compartment, by Alfonso Ramirez-Martinez. When he

spoke to Mr. Siyam, the trooper immediately noticed an overwhelming smell of

cologne and air freshener, which he knew from his experience could be used to mask

drug odors. He also observed that Mr. Siyam was nervous: his hands were shaking,

he appeared fidgety, and he did not fully answer questions. The trooper asked where

they were coming from, and Mr. Siyam said they had been in Denver and were going

to Ohio.

After issuing a warning, the trooper asked for consent to search the vehicle,

which Mr. Bennett gave. When he opened the passenger door, the trooper could

1
Approximately two hours earlier, Mr. Siyam had been stopped by
another trooper. Because that trooper was experiencing symptoms that he
believed were indicative of a stroke, he terminated the traffic stop without asking
for consent to search the vehicle, even though the trooper found the information
Mr. Siyam provided him to be suspicious.

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smell raw marijuana. He found five duffle bags, which contained a total of 208.2

kilograms (approximately 460 pounds) of marijuana. He also found a can of air

freshener and a small suitcase. Although Mr. Siyam and Mr. Bennett had denied

having any luggage in the back of the vehicle, the trooper also discovered luggage

belonging to both men. The trooper arrested all three men.

A Drug Enforcement Administration agent later interviewed Mr. Siyam. Mr.

Siyam initially stated that he had been hired by a man named Luis to pick up a

musician—apparently referring to Mr. Ramirez—in Tucson, Arizona, and to drive

him to Columbus, Ohio. Mr. Siyam did not state that he had made other trips for

Luis. The agent then interviewed Mr. Bennett and learned that they had made a

similar trip for Luis in July, but there were only three duffle bags then, and that Mr.

Siyam had made a trip for Luis prior to that. He also said that Mr. Siyam had been

in contact with Luis throughout the trip. When the agent confronted Mr. Siyam with

this information, Mr. Siyam became agitated and then admitted that he had made one

prior trip. The agent then terminated the interview because he felt Mr. Siyam was

being untruthful.

At trial, Mr. Ramirez testified, pursuant to a plea agreement, that he had been

hired to accompany a load of marijuana from Arizona to Ohio in a limousine. The

men who hired him loaded the duffle bags into the limousine. When the limousine

stopped for gas during the trip, he first met Mr. Siyam, who opened the passenger

door and told Mr. Ramirez to stay in the vehicle and that he could use a bathroom at

another rest area. Mr. Ramirez said that he was in the limousine for 40 to 48 hours,

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without stopping except for food, gasoline, and restroom breaks; he slept in the

limousine.

Mr. Siyam also testified at trial. He said Luis had hired him to drive a fare

from Arizona to Ohio in the past. As to the present trip, Mr. Siyam explained that

they did not stop because Mr. Ramirez did not want to; said that he told Trooper

Phillips they were coming from Denver because he had been asked where they “just”

were; and said that he was very upset when he learned the client (i.e., Ramirez) had

marijuana in the vehicle.

During Trooper Phillips’s testimony, the government introduced the marijuana

into evidence. It was removed after Mr. Siyam completed his cross-examination of

the trooper. The government brought the marijuana back out for a portion of its

closing argument. When a juror had allergy symptoms that were exacerbated by the

marijuana, the government immediately removed it from the courtroom. The

marijuana was displayed for no more than two hours in total during the trial.

The jury returned a guilty verdict on both counts. At sentencing, Mr. Siyam

objected to the drug quantity calculation and the absence of a minor role reduction.

The court overruled these objections. Mr. Siyam’s offense level was 30, resulting in

a 97-121 month Guidelines range. The court sentenced him to 97 months’

imprisonment and indicated that regardless of the drug quantity objection, he would

have received the same 97 month sentence. Sustaining Mr. Siyam’s drug quantity

objection would have given him an offense level of 28, which has a 78-97 month

Guidelines range.

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 DISCUSSION

I. Display of Evidence

Mr. Siyam first argues that the presence of the marijuana evidence in the

courtroom during the trial unduly prejudiced his substantial rights. He contends

that the marijuana smell was so pervasive that it “violated his due process rights

under the Fifth Amendment and the protections in Fed. R. Evid. 403.” Aplt. Br.

at 15. Mr. Siyam concedes that there was no contemporaneous objection to the

pervasiveness of the marijuana odor. Thus, plain error review applies.

To establish plain error, Mr. Siyam must establish that the district court (1)

committed error, (2) that was plain, and (3) that affected his substantial rights.

United States v. Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005). If he demonstrates

that all three conditions are met, he then must show that an exercise of the court’s

discretion is appropriate because the error affects the integrity, fairness, or public

reputation of judicial proceedings. Id. at 1174, 1178. If Mr. Siyam demonstrates

that the alleged error is a constitutional error, “we relax our analysis on the

remaining elements of plain error review.” Id. at 1174.

We need not resolve whether it was error to allow the marijuana to be

physically present in the courtroom. Even assuming this was error, Mr. Siyam

has not shown that the alleged error was “plain.” For an error to be plain, it must

be “clear or obvious under current, well-settled law.” Id. (internal quotation

marks omitted). In general, for an error to be clear or obvious under current,

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well-settled law, “either the Supreme Court or this court must have addressed the

issue. [Though], [t]he absence of such precedent will not . . . prevent a finding of

plain error if the district court’s interpretation was clearly erroneous.” United

States v. Ruiz-Gea, 340 F.3d 1181, 1187 (10th Cir. 2003) (internal quotation

marks and citation omitted).

Mr. Siyam has not pointed to any binding precedent from the Supreme

Court or Tenth Circuit regarding whether it is error to allow marijuana to be

physically present in the courtroom. Furthermore, other authorities do not offer

clear guidance. Even from Mr. Siyam’s perspective, there at best is one case

from the Seventh Circuit, United States v. Garcia, 986 F.2d 1135 (7th Cir. 1993),

that arguably suggests it was an abuse of discretion to permit the marijuana to

remain in the courtroom. However, Garcia is distinguishable. In that case, the

Seventh Circuit admonished the district court for permitting containers of

marijuana to remain open during the defendant’s case-in-chief. Garcia, 986 F.2d

at 1141-42. Here, the marijuana was not in an open container. The marijuana

presented by the government during the trial was repackaged, after forensic testing,

in plastic bags with sealed ends. Further, the marijuana was displayed only during

the direct and cross examinations of Trooper Phillips and part of the government’s

closing arguments.

We do not consider, however, the time the marijuana was displayed during

Trooper Phillips’s cross examination as part of the “total time of display.” That is

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because Mr. Siyam was advised by the district court that he could remove the

marijuana at the conclusion of the government’s direct examination, but he chose

to not have it removed. Mr. Siyam thus effectively waived this part of his

argument and we will not review it on appeal. See United States v. Carrasco-

Salazar, 494 F.3d 1270, 1272 (10th Cir. 2007) (“[W]aiver is the intentional

relinquishment or abandonment of a known right.” (internal quotation marks

omitted) (quoting United States v. Olano, 507 U.S. 725, 733(1993))); United

States v. Jones, 530 F.3d 1292, 1298 n.1 (10th Cir.) (“Generally, ‘there is no

appeal from a violation of a waived right.’” (quoting United States v. Aptt, 354

F.3d 1269, 1281 (10th Cir. 2004))), cert. denied, 129 S. Ct. 583 (2008). Having

marijuana displayed in sealed plastic bags only during the government’s direct

examination of its witness and part of its closing argument is clearly different

from the situation where marijuana is displayed in an open container during the

defendant’s entire case-in-chief. Consequently, Garcia is distinguishable.

Other cases addressing this issue have concluded, under circumstances

similar to the instant case, that the presence of marijuana was not prejudicial. See

United States v. Ramos Rodriguez, 926 F.2d 418, 421 (5th Cir. 1991) (holding

that the presence of 227 pounds of marijuana in the courtroom during trial was

neither a violation of Fed. R. Evid. 403 nor a due process violation, because

“[t]he jury did not view the marijuana for any unreasonable length of time; the

Government’s case lasted a mere four hours” and the defendant did not show that

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the government acted in bad faith); United States v. Dunn, 961 F. Supp. 249, 251-

52 (D. Kan. 1997) (holding that the odor of marijuana in the courtroom did not

create an unfair prejudice where the marijuana was properly admitted into

evidence, the marijuana packages were not open, the marijuana was not present

during the defendant’s case-in-chief, and the defendant was able to argue the

difference in the odor-producing circumstances between what was presented in

the courtroom and how it was found); accord McKenzie v. State, 208 S.W.3d 173,

179-80 (Ark. 2005) (holding that the odor of marijuana in the courtroom was not

unduly prejudicial where the marijuana was removed from the courtroom at the

end of the testimony of the three witnesses who had been in contact with it).

Given this state of the law, we cannot conclude that the alleged error was

clear or obvious under current, well-settled law. Accordingly, we cannot find the

district court committed plain error.

II. Sufficiency of the Evidence

Mr. Siyam next contends that there was insufficient evidence to support his

conviction. In reviewing a challenge to the sufficiency of the evidence, we view the

evidence in the light most favorable to the government and affirm unless no

reasonable jury, when presented with the trial evidence and all reasonable inferences

therefrom, could find the defendant guilty beyond a reasonable doubt. United States

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v. Schaefer, 501 F.3d 1197, 1199-1200 (10th Cir. 2007). 2 We do not view each piece

of evidence in a vacuum; we consider the collective inferences drawn from the

evidence as a whole. An inference is reasonable “only if the conclusion flows from

logical and probabilistic reasoning.” United States v. Jones, 44 F.3d 860, 865 (10th

Cir. 1995).

Mr. Siyam was convicted of (1) conspiracy to distribute and possess with

2
Mr. Siyam has argued for application of the plain error standard,
citing our decision in United States v. Cox, 929 F.2d 1511 (10th Cir. 1991). Aplt.
Br. at 18-19. Although he has insisted that his sufficiency of the evidence
challenge is not waived, Mr. Siyam has indicated that the more-rigorous plain
error standard should govern our review of the challenge because “Mr. Siyam did
not renew his motion for judgment of acquittal after the jury verdicts.” Id. at 18
(emphasis added). We appreciate Mr. Siyam’s forthright approach. However, he
has misread Cox and is mistaken about his obligations with respect to filing a
motion for judgment of acquittal under Fed. R. Crim. P. 29. Cox addressed the
situation where the “Defendant moved for a motion to dismiss based on
insufficiency of evidence” after “the government rested,” but then “[a]t the close
of all the evidence” he did not “renew his earlier motion.” 929 F.2d at 1513. In
that circumstance, we determined that plain error review was appropriate. Id. at
1514; see also United States v. Goode, 483 F.3d 676, 681 n.1 (10th Cir. 2007) (en
banc footnote) (clarifying that “a forfeited claim of insufficient evidence must be
reviewed under the plain-error standard” (emphasis added)). Cox’s holding reflects
an unremarkable stance, which appears to have been uniformly taken by other
federal courts. See, e.g., 2A Charles Alan Wright, Federal Practice & Procedure §
469, at 322-23 (3d ed. 2000) (noting “the rule that if the defendant does move for
acquittal at the close of the government’s case, but fails to renew the motion at the
close of all the evidence, he has waived his earlier objection,” but noting that “there
is an escape from the [waiver] doctrine” that “[a]ll courts recognize” which allows
them to “review the evidence and reverse if the error is bad enough”). Mr. Siyam,
however, is not similarly situated to the defendant in Cox. He moved for a judgment
of acquittal at the close of the government’s case, R., Vol. VII, Tr. at 467; and then
renewed the motion at the close of his case, id., Vol. VIII, Tr. at 748-49, and also at
the close of all of the evidence, id., Tr. at 763-64. In order to preserve his challenge
to the sufficiency of the evidence for appellate review, Mr. Siyam was not obliged
under Fed. R. Crim. P. 29 to then take the additional step of renewing his motion
after the jury verdict. Accordingly, plain error review is not appropriate here.

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intent to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. §

846, with reference to 21 U.S.C. § 841(a)(1) and (b)(1)(B)(vii); and (2) possession

with intent to distribute 100 kilograms or more of marijuana, in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(B)(vii) and 18 U.S.C. § 2. In order to prove a

defendant guilty of participating in a drug conspiracy under § 846, the government

must prove (1) the existence of a drug conspiracy (i.e., an agreement to violate the

drug laws); (2) the defendant knew of the conspiracy and its essential objectives; and

(3) the defendant knowingly and voluntarily became a part of the conspiracy. See

United States v. Smith, 534 F.3d 1211, 1221 (10th Cir.), cert. denied, 129 S. Ct. 654

(2008); United States v. Green, 175 F.3d 822, 832 (10th Cir. 1999). In order to

prove a defendant guilty of possession with intent to distribute illegal drugs, the

government must prove that the defendant “(1) knowingly possessed the illegal drug,

and (2) did so with the intent to distribute it.” United States v. Triana, 477 F.3d

1189, 1194 (10th Cir.), cert. denied, 127 S. Ct. 2928 (2007).

Although Mr. Siyam purports to challenge his convictions for the drug

conspiracy and the substantive drug offense, his arguments focus exclusively on

whether Mr. Siyam possessed the requisite knowledge of the drugs and the intent to

distribute them. See Aplt. Br. at 20 (“The key issues for Mr. Siyam revolve around

whether there was sufficient proof of knowledge and intent.”). Therefore, it is

appropriate for that focus to guide our analysis.

Mr. Siyam contends that the government failed to prove both knowledge and

intent. We disagree. First, the totality of the evidence, in the light most favorable to

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the government, supports the conclusion that Mr. Siyam had knowledge of the

marijuana. A jury may infer that the driver of a vehicle has knowledge of drugs

contained within it. United States v. Gwathney, 465 F.3d 1133, 1143 (10th Cir.

2006); see also United States v. Badilla, 419 F.3d 1128, 1132 n.1 (10th Cir. 2005)

(stating the inference of knowledge of hidden drugs was supported where the

driver owned the truck, the marijuana had an estimated value of at least $119,515,

the hidden compartment was visible, and there was a large volume and weight of

the drugs); United States v. Cota-Meza, 367 F.3d 1218, 1224 (10th Cir. 2004)

(finding the jury could make an inference of knowledge of hidden drugs, inter

alia, because the drugs were readily discoverable).

Here, Mr. Siyam was the driver of the limousine. The marijuana was easily

discoverable. The marijuana was located in the passenger compartment of the

limousine, stacked in five large duffle bags. The duffle bags contained a total of

208.2 kilograms of marijuana. A can of air freshener—a product often used to mask

the odor of marijuana—and Mr. Siyam’s luggage also were found in the passenger

compartment with the marijuana. The amount of marijuana was significant: it had a

street value of approximately $918,000. Cota-Meza, 367 F.3d at 1224 (“This court

has repeatedly recognized that the value of drugs can support an inference of

knowledge.”); see Badilla, 419 F.3d at 1132 n.1 (noting that given the high value

of contraband, it is unlikely that the owner of the contraband “would allow it to

be stored and transported in a vehicle which is owned and driven by someone who

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had no knowledge of its presence”); see also United States v. Pollock, 926 F.2d

1044, 1050 (11th Cir. 1991) (noting that one million dollars worth of cocaine

supports an inference of knowledge of the contraband because “[a] jury reasonably

could conclude that no drug smuggler would entrust a shipment worth a million

dollars to an outsider”). Furthermore, Mr. Siyam’s nervousness with regard to his

interaction with the officer, when considered with the other evidence, could also

support the inference that Mr. Siyam had knowledge of the marijuana. See United

States v. Zhang, 458 F.3d 1126, 1128 (10th Cir. 2006) (“Testimony about

[Defendant’s] generally nervous behavior is another factor that the jury may have

evaluated in considering the evidence presented.”).

There also was other evidence to support the logical conclusion that Mr.

Siyam was aware of the marijuana. Mr. Siyam lied to law enforcement about

previous trips, lied about where they were coming from, and treated his passenger,

Mr. Ramirez, in a manner that was not consistent with what would be expected, if

the passenger had paid for the transport (i.e., telling the passenger when he could

and could not take bathroom breaks). These facts, in total, support the conclusion

that Mr. Siyam had knowledge of the marijuana in the limousine.

Second, “a jury may infer intent to distribute from the possession of large

quantities of drugs.” United States v. Pulido-Jacobo, 377 F.3d 1124, 1131 (10th Cir.

2004); see United States v. Poe, 556 F.3d 1113, 1126 (10th Cir. 2009); United States

v. Delreal-Ordones, 213 F.3d 1263, 1268 n.4 (10th Cir. 2000) (“[W]e have

repeatedly stated that possession of a large quantity of narcotics is sufficient to

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establish the element of intent to distribute.”). Here, 208.2 kilograms of marijuana

were seized incident to Mr. Siyam’s arrest. This evidence, alone, was sufficient for

the jury to infer that Mr. Siyam (with knowledge of the marijuana’s presence) had

the intent to distribute the drugs. Overall, there was sufficient evidence to show that

Mr. Siyam had knowledge of, and the intent to distribute, the marijuana.

III. Procedural Reasonableness

Lastly, Mr. Siyam challenges his sentence and contends that the district

court erroneously calculated the drug quantity attributable to him and erroneously

denied his request for a minor role adjustment. We review a federal criminal

sentence for reasonableness, giving deference to the district court under “the familiar

abuse-of-discretion standard.” Gall v. United States, 128 S. Ct. 586, 594 (2007); see

United States v. Gambino-Zavala, 539 F.3d 1221, 1227 (10th Cir. 2008) ; United

States v. Smart, 518 F.3d 800, 805 (10th Cir. 2008). “[R]easonableness includes

both a procedural component, encompassing the method by which a sentence was

calculated, as well as a substantive component, which relates to the length of the

resulting sentence.” Smart, 518 F.3d at 803 ; see also Gall, 128 S. Ct. at 597. Mr.

Siyam only challenges the procedural reasonableness of his sentence. 3 In

3
Mr. Siyam asserts in his brief that his sentence is not substantively
reasonable. However, while he made an argument based on 18 U.S.C. § 3553 at
sentencing, he does not advance any such argument on appeal. Instead, under the
heading of substantive reasonableness in his brief, he argues that because his
offense level should be lowered by the use of a lesser drug quantity and minor
role reduction, his current sentence is unreasonable. This argument is not a
(continued...)

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determining whether the district correctly calculated the recommended Guidelines

range, we review the district court’s legal conclusions de novo and factual findings

for clear error. United States v. Todd, 515 F.3d 1128, 1135 (10th Cir. 2008).

A. Drug Quantity

Drug quantity is a factual finding that we review for clear error. United

States v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005). We will reverse only if

the district court’s finding “was without factual support in the record or we are

left with the definite and firm conviction that a mistake has been made.” Id.

(quoting United States v. Ryan, 236 F.3d 1268, 1273 (10th Cir. 2001)). “If the

district court’s account of the evidence is plausible in light of the record viewed

in its entirety, the court of appeals may not reverse it even though convinced that

had it been sitting as the trier of fact, it would have weighed the evidence

differently.” Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)

(emphasis added).

“‘The government has the burden of proving the quantity of drugs for

sentencing purposes by a preponderance of the evidence.’” Ryan, 236 F.3d at

1273 (alteration omitted) (quoting United States v. Hooks, 65 F.3d 850, 854 (10th

Cir. 1995)). “Narcotics need not be seized or tested to be held against a

defendant at sentencing.” United States v. Verdin-Garcia, 516 F.3d 884, 896

3
(...continued)
substantive reasonableness argument, but a procedural reasonableness argument.

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(10th Cir.), cert. denied, 129 S. Ct. 161 (2008). In situations where the actual

drugs underlying the drug quantity determination are not seized, “the trial court

may rely upon an estimate to establish the defendant’s guideline offense level so

long as the information relied upon has some basis of support in the facts of the

particular case and bears sufficient indicia of reliability.” Dalton, 409 F.3d at

1251 (internal quotation marks omitted); see Verdin-Garcia, 516 F.3d at 896; see

also United States v. Garcia, 994 F.2d 1499, 1508 (10th Cir. 1993) (“While the

court may rely on a government estimate in approximating the quantity of drugs,

the information underlying the estimate must possess ‘a minimum indicia of

trustworthiness.’” (citation omitted) (quoting United States v. Cook, 949 F.2d

289, 296 (10th Cir. 1991))); cf. U.S.S.G. § 2D1.1 cmt. 12 (“Where there is no

drug seizure . . . the court shall approximate the quantity of the controlled

substance.”).

“[W]hen choosing between a number of plausible estimates of drug

quantity, none of which is more likely than not the correct quantity, a court must

err on the side of caution.” United States v. Richards, 27 F.3d 465, 469 (10th Cir.

1994) (internal quotation marks omitted). We have previously observed that “the

need to estimate drug quantities at times is not a license to calculate drug

quantities by guesswork.” Dalton, 409 F.3d at 1251 (internal quotation marks

omitted).

Nevertheless, this court has, in a variety of circumstances, upheld drug

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quantity determinations based upon estimates. See Garcia, 994 F.2d at 1508

(collecting cases); see, e.g., United States v. Sturmoski, 971 F.2d 452, 462 (10th

Cir. 1992) (estimate based on amount of precursor chemicals seized); Cook, 949

F.2d at 295-96 (estimate based on witness testimony that defendant sold specified

dollar amount of drugs over specified time period); United States v. Short, 947

F.2d 1445, 1456-57 (10th Cir. 1991) (estimate based on the characteristics of drug

laboratory); United States v. Shewmaker, 936 F.2d 1124, 1130 (10th Cir. 1991)

(estimate based on aerial observation of marijuana field); United States v. Harris,

903 F.2d 770, 778 (10th Cir. 1990) (estimate based on defendant’s business

records).

In United States v. Brown, 311 F.3d 886 (8th Cir. 2002), the police seized

approximately three kilograms of cocaine from the defendant’s bag upon arrest.

The police also found four rental car receipts for prior trips along the alleged drug

trade route. The defendant, at trial, admitted to making these four trips. The

district court calculated the drug quantity attributable to the defendant by

estimating that each of the four prior trips involved approximately the same

quantity of drugs as was seized upon the defendant’s arrest. Id. at 889.

The Eighth Circuit affirmed this calculation, noting that while there was no

evidence of the specific quantities involved in the four prior trips, the district

court’s drug quantity estimate was reasonable and not clearly erroneous. Id.; see

also United States v. Oleson, 44 F.3d 381, 385-86 (6th Cir. 1995) (finding that the

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district court did not clearly err in estimating drug quantity by multiplying the

amount of drugs seized upon arrest by the number of trips made, when there was

no direct evidence of the precise quantity of drugs transported during the prior

trips), overruled on separate grounds by United States v. Reed, 77 F.3d 139 (6th

Cir. 1996) (en banc).

Here, the district court adopted the recommendation of the presentence

report, which stated:

The defendant is accountable for the 208.2 net kilograms of
marijuana seized from five duffle bags on December 15, 2005.
Additionally, it was reported that two other trips were made by
the defendant for Luis LNU [Last Name Unknown] that were
similar in nature. According to Bennett, in July 2005, the
defendant transported three duffle bags from Arizona to Ohio
for Luis LNU. It was estimated that each bag contained
approximately 41.64 kilograms of marijuana [based upon the
per bag quantity found during the December 2005 trip] which
equates to approximately 124.92 net kilograms. Assuming the
trip made with Cory LNU [in Summer 2004] was the same
amount, 124.92 net kilograms of marijuana, the defendant is
responsible for a total of 458 kilograms of marijuana which
equates to a base offense level of 28. U.S.S.G. § 2D1.1(c)(6).

R., Vol. IX, ¶ 28 at 8 (Presentence Report, dated March 8, 2007) [hereinafter,

“PSR”]. The district court limited the relevant conduct to only these three trips.

There was evidence of a fourth trip, but there was no information regarding

parties involved, money paid for the trip, or the circumstances of the trip. On

appeal, Mr. Siyam does not contest the 208.2 kilograms of marijuana seized at his

arrest. He only challenges the drug quantity estimated from the reported two

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other trips—July 2005 and Summer 2004—made by him for Luis. After review of

the record, we are convinced that the district court did not clearly err by

attributing 249.84 kilograms of marijuana to Mr. Siyam for his involvement in the

July 2005 and Summer 2004 trips.

Evidence was presented at trial that Mr. Siyam made a trip in July 2005

similar in nature to the trip he made in December 2005, when the officers seized

208.2 kilograms of marijuana from five duffle bags. The July 2005 trip involved

only three duffle bags. The prosecutor produced evidence that Mr Siyam “had a

made a trip to Tucson in July [with Mr. Bennett] and . . . they had transported a

single Hispanic male to Columbus, Ohio, with three of [the same large, black,

duffle bags used to transport the marijuana in December 2005].” R., Vol. VII, Tr.

at 303-04 (Trial Tr., dated Jan. 16-19, 2007). Further, evidence showed that Mr.

Siyam and Mr. Bennett were working for Luis, the same individual who supplied the

marijuana for the December 2005 trip. Mr. Siyam’s testimony corroborated this

evidence. He testified that in July 2005 Luis hired him to make a trip from

Tucson, Arizona to Columbus, Ohio and that he recruited Mr. Bennett to make the

trip with him. 4 On appeal, Mr. Siyam does not contest that the trip occurred, or the

4
At sentencing, the district court found with respect to different
aspects of Mr. Siyam’s trial testimony that he willfully obstructed justice by
committing perjury. R., Vol. V, Tr. Tr. at 1097 (Sentencing Proceeding, dated
Nov. 29, 2007). The district judge noted that, “[Mr. Siyam’s] testimony was that
he had no knowledge that there was marijuana in his [sic] back of his vehicle. I
believe he knowingly testified falsely about that.” Id.

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number of duffle bags involved. He only challenges the assumption concerning the

contents of the duffle bags and their approximate weight.

There was clear record support, however, for the district court’s

determinations about the contents of the duffle bags and their weight. The evidence

relating to the similarity in modus operandi between the July 2005 and December

2005 trips—that is, evidence describing trips involving Mr. Siyam and Mr.

Bennett, the same route, the same supplier, and similar sized, black duffle

bags—was sufficient to support the conclusion that the duffle bags on the July

2005 trip contained marijuana. Further, each duffle bag seized in December 2005

contained approximately 41.64 kilograms of marijuana. Given the similar pattern

of operation, evidence that the July 2005 trip used large, black duffle bags similar

to those used in the December 2005 trip was sufficient to support the conclusion

that the same amount of marijuana was in each bag in the July 2005 trip. See

United States v. Rodriguez, 525 F.3d 85, 107-09 (1st Cir. 2008) (estimating the

quantity of drugs attributable to the defendant by weighing the contents of fifty

bags of cocaine acquired by the government through an undercover operation,

approximating the amount of cocaine in each bag, and approximating the number

of bags attributable to defendant during the time in question); 5 see also U.S.S.G. §

5
While the First Circuit found that the district court clearly erred in
finding that six sellers worked every day selling cocaine, instead of three workers,
the general method of estimating the drug quantity was held to be proper.
Rodriguez, 525 F.3d at 108-09.

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2D1.1 cmt. 12 (“In [estimating the quantity of a controlled substance], the court

may consider . . . similar transactions in controlled substances by the defendant . .

. .” (emphasis added)).

The district court’s findings concerning the July 2005 trip, therefore, were

neither far reaching nor mere guesswork. They found support in the facts of this

particular case. More specifically, the district court’s finding was plausible in

light of the record viewed in its entirety and we are not left with a firm conviction

that a mistake has been made. Accordingly, we cannot say that the court clearly

erred in attributing to Mr. Siyam 124.92 kilograms of marijuana (three bags, each

containing 41.64 kilograms of marijuana) for his involvement in the July 2005

trip.

As for the Summer 2004 trip, evidence was presented at trial that Mr.

Siyam made a trip during this period similar in nature to the December 2005 trip.

The Summer 2004 trip involved the same route as the December 2005 trip—that

is, from Tucson, Arizona to Columbus, Ohio—and involved the same supplier,

Luis. There was no evidence as to whether any duffle bags were transported in

the Summer of 2004. However, there was evidence that Mr. Siyam was paid

$6,000 for the trip—the same amount he charged Luis for the July 2005 trip, and

similar to $6,500 he was paid for the December 2005 trip. 6

6
Mr. Siyam testified that he charged Luis $6,500, instead of $6,000,
(continued...)

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 Although this is a somewhat closer call than our decision regarding the July

2005 trip due to the absence of duffle-bag evidence, we conclude that the district

court did not clearly err in finding that there was sufficient evidence to attribute

124.92 kilograms of marijuana to Mr. Siyam. We are not firmly convinced on

this record that the district court committed a mistake in its drug quantity

estimation. Evidence of a similar modus operandi between the Summer 2004 and

December 2005 trips provided significant support for the district court’s finding

that on both trips Mr. Siyam was transporting drugs. Furthermore, the district

court could have reasonably inferred from the similar amounts that Luis paid Mr.

Siyam that, not only was Luis compensating Mr. Siyam for engaging in similar

activity—that is, transporting drugs—but also that he was compensating Mr.

Siyam for bearing a similar responsibility during the transport based upon a

similar quantity of drugs. See Brown, 311 F.3d at 889; Oleson, 44 F.3d at 385-

86. Indeed, the district court’s attribution of the equivalent of only three duffle

bags of marijuana to Mr. Siyam for the Summer 2004 trip was a conservative

estimate, and properly so, which was based on the size of the July 2005 load

rather than the December 2005 load of five duffle bags. See Richards, 27 F.3d at

469 (noting that “a court must err on the side of caution” (internal quotation

marks omitted)). In sum, we conclude that the district court’s drug quantity

6
(...continued)
for the December 2005 trip because of the increase in gas prices.

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finding concerning the Summer 2004 trip was “plausible in light of the record

viewed in its entirety.” Anderson, 470 U.S. at 573-74 (“Where there are two

permissible views of the evidence, the factfinder’s choice between them cannot be

clearly erroneous.”). We cannot say, therefore, that the district court clearly erred

in its drug quantity estimations concerning the July 2005 and Summer 2004 trips.

B. Minor Role Reduction

A defendant may qualify for a two-level reduction for being a minor

participant in criminal activity. U.S.S.G. § 3B1.2(b). To receive this reduction the

defendant’s role in the criminal conduct must be more than minimal but the

defendant must be less culpable than most other participants. Id. § 3B1.2 cmt. n.5.

The defendant has the burden of proving eligibility for such a reduction by a

preponderance of evidence. See United States v. Virgen-Chavarin, 350 F.3d 1122,

1131 (10th Cir. 2003). A defendant’s assertion that he played a minor role is not

enough to overcome a district court’s contrary finding under a clearly erroneous

standard. See id.

Mr. Siyam’s participation was not so minor as to make the district court’s

finding clearly erroneous. Mr. Siyam argues he is similar to a commercial bus driver

who unknowingly transports a drug courier. However, the evidence supports the

conclusion that Mr. Siyam was more involved than a commercial bus driver. Even

though Mr. Siyam claimed not to know of the marijuana, the jury necessarily found

to the contrary by adjudging him guilty. At best, we could consider Mr. Siyam a

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courier. We have refused to adopt a per se rule that couriers are minor participants.

United States v. Ballard, 16 F.3d 1110, 1115 (10th Cir. 1994). And, even under that

characterization of his role, Mr. Siyam has failed to carry his evidentiary burden of

establishing that he is the kind of courier that should be deemed a minor participant.

Mr. Siyam coordinated his trip with Luis and was in contact with Luis about his

progress. He also lied to the police to prevent discovery of the marijuana. The

district court’s conclusion that he is not entitled to this reduction was properly

supported by the record.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.

Entered for the Court

Jerome A. Holmes
Circuit Judge

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