United States v. Juan Calderon

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

24
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,

25
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

26
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.

27
 VII.

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED

28