UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5006
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN CALDERON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. J. Michelle Childs, District
Judge. (6:11-cr-00338-JMC-20)
Argued: December 12, 2013 Decided: February 7, 2014
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach,
South Carolina, for Appellant. Andrew Burke Moorman, Sr.,
OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South
Carolina, for Appellee. ON BRIEF: William N. Nettles, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a four-day trial, a jury found Juan Calderon guilty
of one count of conspiracy to possess with intent to distribute
marijuana, cocaine, and cocaine base (also known as “crack
cocaine”). Calderon now appeals on multiple grounds, alleging
that the district court erred in several evidentiary rulings, in
dismissing his motion for a judgment of acquittal, and in
determining his sentence. For the following reasons, we affirm
his conviction and sentence.
I.
A.
In 2004, Justin Jenkins began operating a drug trafficking
organization (DTO) in South Carolina dedicated to distributing
marijuana, cocaine, and crack cocaine. The DTO obtained
marijuana and cocaine, cooked a portion of the cocaine into
crack cocaine, and then sold the inventory through a network of
local distributors within South Carolina. Members of the DTO
included, among others, Kevin Montgomery and Thomas Renrick IV.
Queston Clement, a friend and co-conspirator of Jenkins who
lived in California, introduced Jenkins to Cristian Escobedo-
Mendoza in 2008. Shortly thereafter, Escobedo began shipping
marijuana from California to South Carolina. Later that year,
Escobedo introduced Jenkins to Calderon so that Calderon could
2
continue supplying marijuana to the DTO while Escobedo served a
prison sentence. Calderon proceeded to sell marijuana to
Jenkins and Clement from September 2008 to January 2009. He
delivered the drugs in a variety of ways, one of which was to
give packages to Clement, who would then ship them cross country
in a pickup truck provided by Jenkins in which Calderon had
installed a hidden compartment. In order to pay for the drugs,
Jenkins either provided cash payments or had his associates
deposit money into various South Carolina bank accounts,
including one under the name of Juan Calderon.
In December 2008, Jenkins inquired into whether or not
Calderon could procure cocaine, to which Calderon replied
affirmatively. Following that discussion, on January 8, 2009,
Jenkins flew to California to meet with Calderon and purchase
cocaine from him. After his arrival, Jenkins, Calderon, and a
third man named Heliodoro Torrez-Sanchez drove to Fresno, where
they stayed the night. The next morning Jenkins gave $23,000 to
Sanchez for the purpose of buying the cocaine in a Wal-Mart
parking lot while Jenkins and Calderon waited at a nearby Carls,
Jr. restaurant.
The three conspirators were unaware that Sanchez was the
subject of an investigation by the Fresno Police Department
(FPD), and that the purported cocaine dealer was, in reality, an
undercover FPD detective named Manuel Robles. FPD officers
3
arrested Sanchez immediately after he displayed the money to
Detective Robles. They recovered from Sanchez $23,000 and a set
of car keys to a Chevy Malibu. Sanchez then directed them to
the Carls, Jr. restaurant, where they found both Jenkins and
Calderon. The officers ascertained that the car keys in
Sanchez’s possession were to Calderon’s Malibu, and later that
day placed both Jenkins and Calderon under arrest. The local
district attorney declined to charge Jenkins and Calderon
because of insufficient corroborating evidence and they were
both released from custody. Jenkins left California, after
which he and Calderon did not see each other again until 2011.
Escobedo, upon his release from prison in late 2010, began
once again supplying marijuana and cocaine to the DTO. As
before, payments for these narcotics occurred at least partly
through Calderon’s bank account. In January 2011, Jenkins and
Renrick traveled to Las Vegas to meet with Escobedo but were
surprised to be met at the airport by both Escobedo and
Calderon. Calderon drove Jenkins, Renrick, and Escobedo to
their hotel and during the drive he declared that the “snitch”
from the Fresno drug buy, Sanchez, had been killed.
Calderon was indicted by a federal grand jury later in 2011
in connection with his sale of narcotics to the DTO. While
jailed and awaiting trial, Calderon told fellow inmate Stephon
Hopkins that Jenkins had “snitched” on him. J.A. 491. Calderon
4
tried to convince Hopkins to have friends outside the jail
frighten Jenkins’s family to keep him from testifying for the
prosecution and stated that if Jenkins did testify, Calderon
would have his associates “start killing . . . people.” J.A.
495. Calderon also mentioned his plans to intimidate Jenkins to
another inmate, Derrick Mosley, and then endeavored to hire
Mosley to murder Jenkins. Calderon finally attempted to
persuade Demauryo Moody, a third inmate, to sign a false
statement undermining Jenkins’s credibility.
B.
The indictment charged Jenkins, Calderon, and the other co-
conspirators with multiple counts of criminal conduct arising
from the operations of the DTO. Calderon was only charged under
Count One: conspiracy to possess with intent to distribute five
kilograms or more of cocaine, 280 grams or more of crack
cocaine, and 1,000 kilograms or more of marijuana in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(A), all in violation of 21
U.S.C. § 846.
Prior to trial, the government notified Calderon that
Jenkins, Renrick, Montgomery, Clement, Escobedo, Hopkins,
Mosley, and Moody would all testify against Calderon on behalf
of the prosecution. Calderon indicated his desire to inquire
into the sentences faced by these cooperating witnesses, and the
government subsequently moved in limine to prohibit him from
5
eliciting specific numerical ranges on cross-examination on the
grounds that it would unduly prejudice the jury. The district
court granted the motion, and restricted Calderon to using
“adjectives” instead of specific numbers when examining the
cooperating witnesses about their sentencing ranges.
For his part, Calderon moved in limine to exclude evidence
of the events surrounding his 2009 arrest in Fresno (the Fresno
Incident) as improper character evidence under Federal Rule of
Evidence (FRE) 404(b) and as unfairly prejudicial under FRE 403
because it associated him with Jenkins, an admitted high level
drug dealer. The district court found that evidence of the
Fresno Incident was admissible because it was “intrinsic” to the
conspiracy and denied Calderon’s motion accordingly.
The government indicated that it would call three officers
of the FPD to testify to the events surrounding the Fresno
Incident. In response, Calderon moved in limine to exclude any
testimony by these officers about statements Sanchez made to
them on the basis that the statements were hearsay and admitting
them would violate Calderon’s rights under the Sixth Amendment’s
Confrontation Clause. The district court denied Calderon’s
motion, finding that Sanchez’s out-of-court statements were
admissible because they were either being offered by the
government to show the effect on the FDP’s investigation or were
admissions by Sanchez as Calderon’s co-conspirator.
6
At the conclusion of the government’s case-in-chief,
Calderon moved for a judgment of acquittal under Rule 29 of the
Federal Rules of Criminal Procedure on the basis that the
evidence was insufficient to sustain a conviction against him
for conspiracy to distribute crack cocaine. The district court
denied his motion and sent the charge to the jury. Following
deliberations, the jury found Calderon guilty and attributed to
him personally the liability for 1,000 kilograms or more of
marijuana, five kilograms or more of cocaine, and 280 grams or
more of cocaine base. Over Calderon’s objections, the district
court calculated his range under the United States Sentencing
Guidelines at between 292 and 365 months and sentenced him to
292 months in prison. Calderon thereafter filed timely notice
of this appeal.
II.
Calderon’s initial contention on appeal is that the
district court violated his Sixth Amendment right to confront
the witnesses against him when it prevented him from cross-
examining the government’s cooperating witnesses on their
numerical sentencing ranges and potential reductions. “We
review for abuse of discretion a trial court’s limitations on a
defendant’s cross-examination of a prosecution witness,” United
States v. Ramos-Cruz, 667 F.3d 487, 500 (4th Cir. 2012)
7
(internal quotation marks omitted), and review de novo the lower
“court’s legal conclusions regarding constitutional claims,”
United States v. Dinkins, 691 F.3d 358, 382 (4th Cir. 2012).
A.
The Confrontation Clause in the Sixth Amendment guarantees
to every criminal defendant the right to cross-examine the
witnesses against him, and thereby “expose to the jury the facts
from which jurors . . . could appropriately draw inferences
relating to [their] reliability.” Olden v. Kentucky, 488 U.S.
227, 231 (1988) (internal quotation marks omitted). But this
right is not absolute, because “trial judges possess wide
latitude to impose reasonable limits on cross-examination, based
on concerns including harassment, prejudice, confusion of the
issues, repetition, or marginal relevance.” United States v.
Turner, 198 F.3d 425, 429 (4th Cir. 1999).
In the context of cross-examining cooperating witnesses,
the “critical question” is whether the defendant was given the
opportunity to reveal the witness’s “subjective understanding of
his bargain with the government.” United States v. Ambers, 85
F.3d 173, 176 (4th Cir. 1996) (internal quotation marks
omitted). Consequently, our inquiry on appeal focuses on
“whether the jury possesse[d] sufficient evidence to enable it
to make a discriminating appraisal of bias and incentives to lie
8
on the part of the witnesses.” United States v. Cropp, 127 F.3d
354, 359 (4th Cir. 1997) (internal quotation marks omitted).
In Cropp, we held that a district court did not abuse its
discretion when it prohibited a defendant from inquiring into
the contrasting numerical sentencing ranges that co-conspirators
could have received absent cooperation and hoped to receive with
cooperation. Id. at 358-59. We recognized that the credibility
of cooperating witnesses in a criminal prosecution is “very
relevant.” Id. at 358. But we also observed that a trial court
might legitimately be concerned that, if the jury learned the
severity of the sentences faced by a defendant’s co-
conspirators, it would conclude he faced the same punishment and
“hesitate to find [him] guilty even if the evidence proved [his]
guilt.” Id. We ruled that the threat of jury nullification
trumped the minor marginal value added by permitting inquiry
into specific sentencing ranges because, based on the testimony
elicited on cross-examination, “the jury was already well aware
that the witnesses were cooperators facing severe penalties if
they did not provide the government with incriminating
information.” Id. at 359.
In the case before us, the district court ruled under FRE
403, which provides the trial court the discretion to exclude
testimony when its probative value is “substantially outweighed
by a danger of . . . unfair prejudice,” that Calderon was
9
permitted to cross-examine each of the cooperating witnesses
about their expected prison sentences using “adjectives” but not
“numbers.” J.A. 68. Calderon maintains the numerical
sentencing ranges and potential reductions for assisting the
government would facilitate the jury’s ability to perform a
“discriminating appraisal” of the incentives of the cooperating
witnesses to be untruthful and the district court’s evidentiary
ruling was thus in error. He also claims that Cropp does not
apply to the cross-examinations of Hopkins, Mosley, and Moody
because they were not Calderon’s co-conspirators. Even if
Calderon is correct, we need not determine the precise scope or
application of our holding in Cropp in this case. For assuming
without deciding that any constitutional error occurred, it was
unquestionably harmless.
B.
The “Constitution entitles a criminal defendant to a fair
trial,” but it does not guarantee a “perfect one.” Delaware v.
Van Arsdall, 475 U.S. 673, 681 (1986). Therefore, “otherwise
valid conviction[s] should not be set aside” if we can conclude,
“on the whole record, that the constitutional error was harmless
beyond a reasonable doubt.” United States v. Abu Ali, 528 F.3d
210, 256 (4th Cir. 2008) (internal quotation marks omitted).
As part of its case, the government introduced bank records
and the testimony of the arresting officers involved in the
10
Fresno Incident. The government’s case also depended in large
part on the testimony of co-conspirators and jailhouse
informants. In Turner, we found that the district court erred
as a matter of law by excluding as not relevant testimony from a
witness regarding her understanding of the penalties she would
have faced had she not cooperated with the government. 198 F.3d
at 430. We observed, though, that the witness admitted she
faced a “pretty serious” penalty and that it was impossible to
conclude that “a more specific response from [the witness] would
have significantly changed the jury’s impression of her
credibility.” Id. at 431. Thus, we held that even if the error
was constitutional it was “harmless beyond a reasonable doubt”
because the district court permitted a “substantial and thorough
examination of [the witness’s] biases.” Id. at 430-31 & n.6.
The district court afforded Calderon a similar opportunity
to conduct a vigorous inquiry into the cooperating witnesses’
subjective understandings of their expected prison sentences and
he took full advantage of it. The trial court explained that it
“did allow the defense to use adjectives, harsh penalty, serious
penalties, without indicating a number.” J.A. 361. Calderon
elicited separately from Clement, Escobedo, and Moody the fact
that they were each facing the possibility of serving “a lot of
time” incarcerated, J.A. 361-62 (Clement), 457 (Escobedo), 589
(Moody), from Jenkins that he did not want to “spend a long time
11
in jail,” J.A. 254, and from Mosley that he might receive a
“significant amount of time” locked up, J.A. 566-67.
Furthermore, despite the district court’s restriction, Renrick
admitted on cross-examination that he was “looking at life” in
prison, J.A. 416, and Hopkins stated that he “just did two
years” and had “five years and ten months” left on his sentence,
J.A. 499. Finally, Calderon told the district court that he
never intended to call into question the credibility of the
eighth cooperating witness, Montgomery.
In addition to these admissions, the record also reveals
that the district court permitted a great deal of testimony
regarding each of the cooperating witnesses’ biases and
credibility. All eight testified on direct examination that
they had pleaded guilty to various crimes and hoped or expected
to gain leniency on their sentences by testifying for the
government. Calderon extensively impeached Jenkins, who was the
government’s key cooperating witness, using his many past
instances of untruthfulness. Calderon forced Clement to admit
that he had lied to the police, cornered Renrick with his
extensive criminal history, and revealed Escobedo’s omission of
key details in his early debriefings with government agents. He
also cross-examined Hopkins, Mosley, and Moody -- the three
informants who had interacted with Calderon in jail -- on their
many criminal convictions unrelated to the conspiracy in this
12
case and compelled them each to admit they wanted to be released
as soon as possible. Calderon meticulously impeached these
witnesses and we think the possibility exceedingly small that
the admission of their precise sentencing ranges and possible
reductions would have “significantly changed the jury’s
impression of [their] credibility.” Turner, 198 F.3d at 431.
Moreover, it cannot be said that the jury did not have
some notion of the exact prison sentences Calderon’s co-
conspirators faced. When Calderon asked Renrick if he was
“looking at a lot of time,” which is the exact same question
Calderon posed to several of the other cooperating witnesses,
Renrick testified that he faced a life sentence. J.A. 416. The
district court also highlighted the incentives of cooperating
witnesses to be untruthful when it carefully instructed the jury
prior to its deliberations that when deciding what weight to
give their testimony it could consider the fact they were
cooperating with and depended on the government for possible
sentence reductions. Considering the entire record, we are
satisfied that the district court’s ruling did not deprive
Calderon of a fair trial and that any violation of his Sixth
Amendment rights was harmless beyond a reasonable doubt.
13
III.
Calderon’s second and third arguments on appeal rest on his
claim that the government failed to offer evidence connecting
him to the sale of crack cocaine. He first maintains that the
district court erred in denying his motion for a judgment of
acquittal because the government did not prove beyond a
reasonable doubt that he was involved in the sale of crack
cocaine. He argues alternatively that the district court erred
in dismissing his motion because the government proved not one
conspiracy to distribute marijuana, cocaine, and crack cocaine,
but instead two separate conspiracies: one involving marijuana
and cocaine and the other, to which he was not connected,
involving crack cocaine. We discuss each of these arguments in
turn.
“We review de novo the district court’s denial of a motion
for judgment of acquittal pursuant to Rule 29 of the Federal
Rules of Criminal Procedure.” United States v. Green, 599 F.3d
360, 367 (4th Cir. 2010). Because this is a challenge to the
sufficiency of the evidence, “[w]e will sustain the jury
verdict” if we find that, “viewing the evidence in the light
most favorable to the government, there is substantial evidence
to support the conviction.” United States v. Hamilton, 699 F.3d
356, 361 (4th Cir. 2012) (internal quotation marks omitted).
14
A.
Calderon asserts that the government, by charging him with
conspiracy to distribute marijuana, cocaine, and cocaine base,
must prove his connection with each of those substances beyond a
reasonable doubt. It is true of course that the government
bears the burden of proving to the jury all the elements of the
charged offense beyond a reasonable doubt. United States v.
Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (en banc). The
elements of the conspiracy charged in this case are that the
defendant (1) had an agreement to distribute marijuana, cocaine,
and cocaine base, (2) knew of the conspiracy, and (3) knowingly
and voluntarily participated in that conspiracy. United States
v. Allen, 716 F.3d 98, 103 (4th Cir. 2013). Calderon rests his
argument on the “and” linking the drugs in the first element,
but we are not persuaded that this conjunction shows that the
government failed to meet its burden.
It is clearly established that “one may be a member of a
conspiracy without knowing its full scope, or all its members,
and without taking part in the full range of its activities or
over the whole period of its existence.” Id. (internal
quotation marks omitted). The focus of a conspiracy charge is
not on the details of the operation, but rather whether there
has been an “agreement to violate the law.” Id. (internal
quotation marks omitted).
15
It is Calderon’s position that the government did not prove
his involvement in the conspiracy because while it presented
evidence linking him to the sale of marijuana and cocaine, it
had no evidence connecting him to the sale of crack cocaine,
which was cooked and distributed solely in South Carolina by the
DTO. But the record viewed in the light most favorable to the
government affords ample reason to reject his claim. Calderon’s
assumption of Escobedo’s drug supply role when Escobedo went to
prison, repeated drug sales to Jenkins and Clement, modification
of Jenkins’s pickup truck with a hidden compartment, receipt of
drug payments through his bank account, involvement in the
attempted cocaine purchase in Fresno in 2009, declaration that
Sanchez was a “snitch” and had been murdered, and attempts once
in jail to intimidate and murder Jenkins altogether make for a
strong case. Although the government did not offer evidence of
Calderon’s personal involvement with crack cocaine, it is
uncontested that members of the DTO produced and distributed
crack cocaine. Calderon’s part in advancing the general
conspiracy plainly suffices to sustain his conviction, and we
decline to disturb the jury’s verdict in this regard.
B.
Calderon next claims that the government proved two
conspiracies at trial, only one of which implicated him.
Because he did not raise this argument in his Rule 29 motion
16
below, we review it for “plain error” under Federal Rule of
Criminal Procedure 52(b). United States v. Wallace, 515 F.3d
327, 331-32 (4th Cir. 2008). Under this standard, the defendant
bears the burden of demonstrating that (1) an error occurred,
(2) it was plain, and (3) it affected his substantial rights.
United States v. Rodriquez, 433 F.3d 411, 414-15 (4th Cir.
2006). And even if he can show these three factors, “we have
discretion whether to recognize the error, and should not do so
unless the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v.
Dyess, 730 F.3d 354, 361 (4th Cir. 2013) (internal quotation
marks omitted).
Calderon’s contention relies on the same general
proposition discussed above with one exception: in this version
of the argument, he maintains that the government’s failure to
tie him to the crack cocaine shows that there were parallel but
dichotomous conspiracies, only one of which involved him. We
have recognized that a “single conspiracy exists, when the
conspiracy had the same objective, it had the same goal, the
same nature, the same geographic spread, the same results, and
the same product.” United States v. Jeffers, 570 F.3d 557, 567
(4th Cir. 2009) (internal quotation marks omitted). “The mere
fact that more than one substance is charged . . . does not mean
17
there are multiple conspiracies.” United States v. Barlin, 686
F.2d 81, 89 (2d Cir. 1982).
The testimony and evidence adduced at trial reveals the
coherence of the conspiracy at issue in this case. Calderon
shared the same objective as his co-conspirators: to make money
by shipping and selling prohibited substances in violation of
federal drug laws. He provided narcotics to the same
individuals who were producing crack cocaine. The conspirators
used the same methods to transport the drugs and the same
techniques to make and receive payments. They distributed those
drugs within the same geographic area of South Carolina. And,
until they were apprehended, they enjoyed the same fruits of
their unlawful enterprise. We therefore hold that Calderon did
not carry his burden of proving that the district court plainly
erred in dismissing his Rule 29 motion.
IV.
In his fourth argument, Calderon maintains that the
district court erred in permitting the government to offer
evidence of his participation in the 2009 Fresno Incident
because it was improper character evidence under Federal Rule of
Evidence (FRE) 404(b) and unfairly prejudicial under FRE 403.
We review a district court’s evidentiary rulings for abuse of
18
discretion. United States v. Lespier, 725 F.3d 437, 447 (4th
Cir. 2013).
FRE 404(b) prohibits “[e]vidence of a crime, wrong, or
other act” if offered at trial “to prove a person’s character in
order to show that on a particular occasion the person acted in
accordance with the character.” However, not all purported
character evidence falls under 404(b)’s proscription. A prior
act that is “intrinsic to the crime charged, and is not admitted
solely to demonstrate bad character, . . . is admissible.”
United States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996). “Other
. . . acts are intrinsic when they are inextricably intertwined
or both acts are part of a single criminal episode or the other
acts were necessary preliminaries to the crime charged.” United
States v. Wilson, 624 F.3d 640, 652 (4th Cir. 2010) (internal
quotation marks omitted).
We are unconvinced by Calderon’s arguments that the Fresno
Incident is not inextricably intertwined with his conspiracy
charge. He maintains that the Fresno Incident is extrinsic
because he was never indicted for a crime in connection with his
arrest due to a lack of sufficient corroborating evidence.
However, the fact that Calderon was never indicted is of no
import here because the evidence surrounding the Fresno Incident
was undoubtedly relevant to the narrative of the conspiracy and
“uncharged acts may be admissible as direct evidence of the
19
conspiracy itself.” United States v. Diaz, 176 F.3d 52, 79 (2d
Cir. 1999) (internal quotation marks omitted). It is the
elements of the crime, not every single piece of evidence, that
the government must prove beyond a reasonable doubt.
The Fresno Incident was undeniably intrinsic to the charged
conspiracy. Evidence adduced at trial showed that Jenkins and
Calderon collaborated in the attempt to purchase cocaine from
what turned out to be an undercover FPD detective. The attempt
to buy cocaine arose out of Jenkins’s and Calderon’s prior
dealings buying and selling marijuana and demonstrated a
continuation and deepening of their mutual plans to violate
federal drug laws for personal gain. The district court did not
abuse its discretion in permitting testimony about the Fresno
Incident as direct evidence of the conspiracy.
Calderon next calls for this court to overturn the trial
court’s ruling under FRE 403, which permits a district court to
exclude evidence if its probative value is “substantially
outweighed by a danger of . . . unfair prejudice.” The
preceding discussion of the Fresno Incident’s intrinsic
connection to the charged conspiracy demonstrates its probative
value. But Calderon claims that the jury was prejudiced by the
Fresno Incident because it associated him with Jenkins, the
admitted leader of the DTO. The jury, he contends, may have
desired to punish him for his involvement in the attempt to buy
20
cocaine regardless of whether he was actually guilty of
conspiracy. Any slight prejudice arising from these inferences
is neither unfair, as FRE 403 requires, and did not
substantially outweigh the probative value of the Fresno
Incident evidence as a whole. We cannot conclude that the
district court abused its direction in admitting it.
V.
Calderon next claims that the district court improperly
permitted the FPD officers involved in the Fresno Incident to
testify to statements made to them by Sanchez. Calderon alleges
the statements were hearsay and their admission violated his
right to confront the witnesses against him. We review the
district court’s rulings involving hearsay for abuse of
discretion, United States v. Obi, 239 F.3d 662, 667 (4th Cir.
2001), and its Confrontation Clause rulings de novo, United
States v. Abu Ali, 528 F.3d 210, 253 (4th Cir. 2008).
During the trial, the government called Officer Robles,
Officer Robert Valdez, and Officer Dean Cardinale of the FPD to
describe the events surrounding the Fresno Incident. The
officers testified that, among other things, Sanchez told the
FPD prior to his arrest that he was interested in purchasing
three kilograms of cocaine on behalf of other individuals.
Officer Robles also provided the following testimony:
21
Q: After Mr. Sanchez was arrested in the Wal-Mart
parking lot, where did you and other officers respond?
A: To the Carls, Jr. restaurant.
Q: Why did you respond to the Carls, Jr. restaurant?
. . . .
A: We responded out there because we had information
that a vehicle that was used was at that location with
co-conspirators of the drug deal.
Q: Who gave you that information?
A: Mr. Sanchez did.
J.A. 143-44. Calderon maintains that Sanchez’s statements were
inadmissible hearsay and violated his Confrontation Clause
rights. Specifically, he argues that Sanchez’s pre-arrest
statements were inadmissible because the government never showed
that Sanchez was a co-conspirator and his post-arrest statement
was inadmissible because it was offered by the government for
its truth.
Sanchez’s statements prior to his arrest fall under the co-
conspirator provision in FRE 801(d)(2)(E). FRE 801(c) generally
prohibits witnesses from relaying to the jury out-of-court
statements if they are “offer[ed] in evidence to prove the truth
of the matter asserted.” But statements are not hearsay if
“made by the party’s coconspirator during and in furtherance of
the conspiracy” and are “offered against [the] party.” Fed. R.
Evid. 801(d)(2)(E). Further, co-conspirator statements are
22
admissible if the government can prove three elements by a
preponderance of the evidence: (1) a conspiracy existed in fact,
(2) “the declarant and the defendant were members of the
conspiracy,” and (3) “the statement was made in the course of,
and in furtherance, of the conspiracy.” United States v.
Graham, 711 F.3d 445, 453 (4th Cir. 2013).
The government met its burden here. For the first element,
there was the trial evidence already recounted proving the
existence of a conspiracy. The second element was satisfied by
the testimony of Jenkins, as well as Sanchez’s own statements to
the FPD, that showed both Sanchez’s and Calderon’s involvement
in the attempted cocaine purchase as co-conspirators.
Additionally, the car keys recovered from Sanchez’s person after
his arrest were to Calderon’s Chevy Malibu, connecting Calderon
directly to Sanchez and the attempted purchase. Renrick also
testified that Calderon confirmed Sanchez’s participation in the
Fresno Incident when informing Jenkins that the “snitch” had
been killed. And the third element was established because the
statements at issue were clearly “in furtherance of” the crime
in that they were made for the purpose of purchasing cocaine, a
key objective of the conspiracy.
Sanchez’s statement after his arrest to Detective Robles
directing the FPD to where Jenkins and Calderon were waiting was
also admissible. A statement is not hearsay under FRE 801(c) if
23
it is offered for a purpose other than the truth of the matter
asserted, such as “the limited purpose of explaining why a
government investigation was undertaken.” United States v.
Love, 767 F.2d 1052, 1063 (4th Cir. 1985). Here, Sanchez’s
statement post-arrest was offered to show why the officers went
to the Carls, Jr. restaurant and consequently was elicited
simply to show its effect on the FPD’s subsequent course of
conduct. We thus find that the district court did not abuse its
discretion when it admitted these statements.
Calderon’s constitutional claim is likewise wanting because
the Confrontation Clause applies only to “testimonial”
statements. Crawford v. Washington, 541 U.S. 36, 51 (2004).
Statements made by co-conspirators in furtherance of a
conspiracy are not testimonial in nature, even when made
unwittingly to undercover government agents. See id. at 56.
Likewise, statements offered for purposes other than to prove
the truth of the matter asserted are not considered testimonial.
Id. at 59 n.9. Therefore, Sanchez’s statements to the FPD are
not testimonial and do not run afoul of the Confrontation
Clause, and the district court did not err in admitting them.
VI.
Calderon’s sixth and final argument is that the district
court imposed on him an unreasonable sentence. We review a
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defendant’s sentence to confirm first that the district court
committed “no substantial procedural error.” United States v.
Worley, 685 F.3d 404, 409 (4th Cir. 2012). We apply a clear
error standard to the district court’s factual findings and a de
novo standard to its legal determinations. United States v.
McManus, 734 F.3d 315, 317 (4th Cir. 2013). “If no procedural
error exists, we review the substantive reasonableness of the
sentence imposed for abuse of discretion.” United States v.
Strieper, 666 F.3d 288, 292 (4th Cir. 2012) (internal quotation
marks omitted).
A.
Calderon claims the district court miscalculated the amount
of narcotics attributable to him and thereby erred in
determining his sentencing range under the Sentencing
Guidelines. First, he contends that because there was no
evidence presented at trial tying him to the sale of crack
cocaine he should not be held responsible at sentencing for the
sale of 280 grams of crack cocaine because it was not
“reasonably foreseeable to him.” United States v. Williams, 986
F.2d 86, 90 (4th Cir. 1993). Calderon also argues that the
district court incorrectly found that he was liable for “2 to
300” pounds of marijuana, J.A. 849, when trial testimony
established only his direct sale of “2 to 250” pounds, J.A. 349.
Insofar as these drug amounts are not attributable to him,
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Calderon maintains that his Base Offense Level under the
Guidelines should be lower and his sentence correspondingly
reduced.
The district court, however, properly determined that it
was bound by the jury’s verdict attributing to Calderon at least
1,000 kilograms of marijuana, five kilograms of cocaine, and 280
grams of cocaine base. A sentencing court cannot, under its own
preponderance standard, upend the jury’s findings, particularly
when those findings are expressed in no uncertain terms in a
verdict. See United States v. Curry, 461 F.3d 452, 460-61 (4th
Cir. 2006) (overturning a district court’s decision to vary
downward from the Guidelines sentencing range because it
“contradicted the weight of evidence and the verdict”). As a
matter of law, the district court did not err in adopting the
drug quantities found by the jury, and therefore it properly
calculated his sentencing range under the Guidelines.
B.
We next consider whether the resulting sentence was
substantively reasonable, using the presumption on appeal that a
sentence under a “properly calculated Guidelines range” is
reasonable. Strieper, 666 F.3d at 295 (internal quotation marks
omitted). A defendant may overcome this presumption by showing
“that the sentence is unreasonable when measured against” the
statutory sentencing factors in 18 U.S.C. § 3553(a). United
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States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006)
(internal quotation marks omitted).
Calderon advances two § 3553(a) factors as grounds for
error: that the district court failed to consider his “history
and characteristics,” § 3553(a)(1), and also ignored “the need
to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct,”
§ 3553(a)(6). He notes that his criminal history was less
substantial than some of his co-defendants who received lesser
sentences. And he highlights the fact that some of his co-
conspirators, who pleaded to the same conduct for which he was
found guilty, received sentences more lenient than his own.
The sentencing court, however, properly determined his
criminal history category. The court below also found it
reasonable that his sentence was higher than some of his co-
defendants because, unlike Calderon, they had accepted
responsibility for their criminal conduct. Moreover, none of
his co-conspirators had intimidated witnesses who were to
testify against them. The Guidelines sentencing range for
Calderon was between 292 and 365 months and the district court
exercised its discretion to sentence him to the lower end of
this range. We cannot conclude that Calderon’s sentence was
substantively unreasonable.
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VII.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
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