United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-1537
___________
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
Delton Lamon Alexander, *
*
Defendant - Appellant. *
*
___________
Submitted: November 15, 2004
Filed: June 3, 2005 (Corrected: 06/14/05)
___________
Before MURPHY, HANSEN, and MELLOY, Circuit Judges.
___________
MELLOY, Circuit Judge.
Defendant-Appellant Delton Alexander appeals his conviction for conspiracy
to distribute methamphetamine and the attribution of twelve pounds of
methamphetamine to him for sentencing purposes. 21 U.S.C §§ 846, 841(a), and
841(b)(1)(B)(viii).
In the fall of 2002, Captain David Henderson of the Johnson County Iowa Drug
Task Force interviewed Brooke Walton. Walton identified a person involved in the
distribution of drugs in and around Johnson County. Walton knew this person as
“Cholo.” In court Walton identified Macedonio Castillo Hernandez as “Cholo.”
At the direction of law enforcement, Walton arranged for Special Agent Chuck
Pettrone of the Iowa Division of Narcotics Enforcement to meet with Hernandez in
an effort to purchase methamphetamine. On March 12, 2003, Hernandez agreed to
distribute two ounces of methamphetamine to Pettrone in exchange for $1,700. At
their meeting, Hernandez introduced Pettrone to Raul Munoz Lopez, also known as
Tony Zuniga. Hernandez requested that Pettrone deal directly with Lopez in the
future. During Pettrone and Lopez’s initial conversation, Lopez asked Pettrone if he
was a police officer. Despite his concerns that Pettrone was affiliated with law
enforcement, Lopez eventually distributed two ounces of methamphetamine to
Pettrone.
On March 19, 2003, Lopez sold Pettrone three more ounces of
methamphetamine. On March 25, 2003, Lopez sold an additional pound of
methamphetamine to Pettrone. In each of these ensuing transactions, Lopez became
increasingly nervous and jittery, continually asking Pettrone if he was associated with
law enforcement. Despite Lopez’s growing concerns, Pettrone and Lopez began to
negotiate the purchase of ten pounds of methamphetamine.
On April 3, 2003, Pettrone and another agent met with Lopez and an unknown
black male to discuss future transactions. At the end of this meeting, law
enforcement officials followed Lopez and the unknown male to the apartment of
Delton Alexander.
On April 8, 2003, Pettrone spoke with Lopez over the telephone. Lopez was
agitated and suspicious. Lopez asked to meet with Pettrone in person. Pettrone and
-2-
Lopez agreed to meet in the parking lot of a mall. Surveillance officers observed the
meeting. They also audio- and videotaped the meeting. Before the meeting, the
surveillance officers observed a blue Chrysler arrive at the mall. Delton Alexander
was a passenger in the car. Alexander got out of the car and walked to the entrance
of the mall. Alexander stood outside the entrance to the mall and watched the parking
lot. Alexander did not ever enter the mall. According to Captain Henderson,
Alexander stood approximately fifty yards from where Lopez and Pettrone met.
During the meeting, Alexander appeared to be scanning the parking lot, focusing in
particular on where Lopez and Pettrone were meeting. Just before the conclusion of
the meeting, Alexander started to walk across the parking lot towards a McDonald’s
restaurant, scanning the parking lot as he walked. Following the meeting, Lopez
picked up Alexander near the McDonald’s.
After picking up Alexander, Lopez and Alexander approached one of the
surveillance officers in the mall parking lot, Officer David Coffman. Coffman rolled
down his window to speak to Lopez. Lopez told Coffman that he was driving a
“cop’s van.” Lopez asked about the contents of the van and commented on the tinted
windows. Based on this exchange, Coffman identified Alexander as the sole
passenger in Lopez’s vehicle. Alexander did not speak during the exchange.
Pettrone and Lopez continued to negotiate the purchase of more
methamphetamine. Lopez agreed to deliver twelve pounds of methamphetamine to
Pettrone on April 14, 2003. On April 14, Lopez drove a silver Chevy Prism to the
prearranged location of the drug transaction. Earlier in the day, officers observed
Alexander working on the undercarriage of the same car while it was parked by his
apartment. Lopez had also been observed carrying a laundry basket from the
apartment building to an orange Ford van in the apartment’s parking lot that day.
After placing the basket in the van, Lopez returned to the apartment building. Lopez
delivered the twelve pounds of methamphetamine to Pettrone and Stapleton later that
-3-
day. Alexander was not present during this transaction, nor was he directly involved
in any other transaction.
After Lopez’s arrest, officers searched Alexander’s apartment. Alexander was
present at the time of the search. He had arrived at the apartment driving a gold car.
The orange Ford van was in the apartment building parking lot at that time. Officers
searched the car and the van. Investigators found two baggies of marijuana in the
front seat area of the car. In a drawer next to the kitchen sink, investigators found a
baggie that contained marijuana and a baggie of methamphetamine. Investigators
found a glass tube used to smoke cocaine or methamphetamine on the floor of the
bathroom and two digital scales commonly used to weigh controlled substances in the
living room closet. In the orange van, investigators found a laundry basket containing
four bags of marijuana, two bags of methamphetamine, a scale commonly used to
weigh controlled substances, a drug ledger, and packaging material.
Alexander was interviewed by law enforcement at the residence. According
to the police officer, Alexander stated that Lopez asked him to serve as a lookout, and
that he had agreed to do so. The officer testified that Alexander was supposed to look
for police or anyone else who might cause Lopez problems. If a problem arose,
Alexander was to contact Lopez on his cellular telephone. Alexander also told the
officer that he was present when Lopez confronted an individual in the mall parking
lot.
On June 12, 2003, a federal grand jury returned a superseding indictment
against Alexander. The indictment charged him with one count of conspiracy to
distribute methamphetamine in violation of 21 U.S.C §§ 846, 841(a), and
841(b)(1)(B)(viii). At trial, Alexander testified in his own defense. Alexander denied
making any admissions to the police officer regarding why he was at the mall.
Alexander testified that he was not familiar with any of the items seized in his
apartment on April 14, 2003. He denied acting as a lookout for Lopez. Alexander
-4-
testified that he went to the mall to obtain his apartment key from Lopez and to ask
for a ride home. He stated that he went into the mall after observing Lopez meet with
another individual in the parking lot and that he waited until the meeting between
Lopez and Agent Pettrone was finished to ask for the key because he did not want to
be involved in Lopez’s conversation. Alexander asserted that he was unaware that
Lopez used drugs or was involved in the distribution of drugs.
On October 3, 2003, the jury found Alexander guilty of one count of
conspiracy to distribute methamphetamine and that the quantity of methamphetamine
involved in the conspiracy was equal to or over fifty grams. On March 2, 2004, the
district court1 imposed a sentence of seventy-eight months. Alexander brings this
timely appeal.
I.
Alexander asserts that insufficient evidence supports his conviction for
conspiracy to distribute methamphetamine. “The standard of review . . . is very
strict.” United States v. Sanders, 341 F.3d 809, 815 (8th Cir. 2003). We review “the
evidence in the light most favorable to the government, resolving evidentiary
conflicts in favor of the government, and accepting all reasonable inferences drawn
from the evidence that support the jury’s verdict.” Id. (quoting United States v.
Espino, 317 F.3d 788, 792 (8th Cir. 2003)). We reverse the jury’s verdict “only if no
reasonable jury could have found [Alexander] guilty.” United States v. Dabney, 367
F.3d 1040, 1042 (8th Cir. 2004).
1
The Honorable Ronald E. Longstaff, Chief United States District Judge
for the Southern District of Iowa.
-5-
“To establish that [Alexander] conspired to distribute [methamphetamine,]
. . . the government must prove: (1) that there was a conspiracy, i.e., an agreement
to distribute [methamphetamine]; (2) that the defendant knew of the conspiracy; and
(3) that the defendant intentionally joined the conspiracy.” Espino, 317 F.3d at 792.
“A conspiracy need not be proved by direct evidence, it may be inferred from
circumstantial evidence.” United States v. Garrison, 168 F.3d 1089, 1095 (8th Cir.
1999). “Tacit understanding – as opposed to mere presence at and knowledge of an
intended drug sale – will suffice; a formal agreement is unnecessary.” Espino, 317
F.3d at 792. Furthermore, “[e]vidence of association or acquaintance, though
relevant, is not enough by itself to establish a conspiracy.” Id.
The evidence in this case supports the jury’s finding that Alexander knowingly
joined the agreement to distribute methamphetamine. A police officer, Officer Akers,
testified that during his interview, Alexander stated Lopez asked him to serve as a
lookout for the April 10, 2003 meeting with Pettrone. Akers also testified that
Alexander said he was keeping an eye out for the police in particular as well as
“anyone else who could cause [Lopez] problems.” At trial, Alexander denied making
these statements.
In considering the evidence, the jury weighed the conflicting testimony of
Akers and Alexander. It determined that Officer Akers’s testimony was more
credible. We give significant weight to the jury's credibility determination. United
States v. Meza-Gonzalez, 394 F.3d 587, 592 (8th Cir. 2004); Espino, 317 F.3d at 794.
Given the absence of evidence to contradict Akers’s testimony, a jury could
reasonably rely on Akers’s testimony to find that Alexander conspired with Lopez
despite Alexander’s denials. See Meza-Gonzalez, 394 F.3d at 592; United States v.
Reed, 297 F.3d 787, 789 (8th Cir. 2002) (permitting juries to “draw an inference of
guilt” based on “disbelief of defendant’s denials” when corroborated by other
evidence).
-6-
Alexander’s actions support the reasonableness of the jury’s findings.
Alexander sat in Lopez’s car when Lopez confronted an individual he believed to be
a law enforcement official. A jury could reasonably conclude that Lopez would not
have confronted the officer in the presence of Alexander if Alexander was not
participating in the conspiracy.
In addition, the evidence seized from the apartment and vehicles support the
conclusion that Alexander knew of, and intentionally joined, the conspiracy. During
the search of the apartment and the cars, investigators found methamphetamine,
marijuana, drug paraphernalia, and digital scales. Officers found additional quantities
of marijuana and methamphetamine, a scale, and a drug ledger in the Ford van
Alexander was seen driving on April 10, 2003. Officers found two baggies of
marijuana in the car Alexander drove on April 14, 2003. This evidence makes a
jury’s inference that Alexander acted knowingly in furtherance of the conspiracy
reasonable.
Prosecutors entered into evidence the videotape of the meeting in the mall
parking lot. This tape and the testimony of Captain Henderson provide evidence of
Alexander’s participation in the conspiracy. This evidence places Alexander at the
mall entrance approximately fifty yards from the meeting between Lopez and
Pettrone, continuously scanning the parking lot. It shows he never entered the mall.
It also demonstrates that Alexander’s actions ceased once the meeting concluded.
Alexander argues that this circumstantial evidence merely shows that he was
present, not that he was a part of a conspiracy. Alexander correctly states that we
have long held that evidence of “mere presence,” “even when coupled with
knowledge” that someone else present intends to sell drugs, is insufficient to establish
participation in a conspiracy. United States v. Cruz, 285 F.3d 692, 701 (8th Cir
2002). The evidence in this case, when taken as a whole, is sufficient to establish
-7-
participation in a conspiracy. Alexander was not only present, he actively served as
a lookout.
II.
The district court imposed a sentence of seventy-eight months. In imposing
that sentence, the court attributed twelve pounds of methamphetamine to Alexander.
Alexander maintains that the evidence does not support the district court’s drug
quantity attribution.
“We review the district court’s application of the Sentencing Guidelines de
novo.” United States v. Johnston, 353 F.3d 617, 625 (8th Cir. 2003). “The district
court’s factual findings in relation to drug quantity are reviewed for clear error.” Id.
“We can disturb the district court’s drug quantity calculation only if the entire record
definitely and firmly convinces us that a mistake has been made.” United States v.
Titlbach, 300 F.3d 919, 923 (8th Cir. 2002).
The district court’s finding that twelve pounds of methamphetamine were
attributable to Alexander was not clearly erroneous. Alexander was convicted of
conspiracy. “In jointly-undertaken criminal activity, a defendant is accountable for
his own conduct as well as conduct taken by others that was in furtherance of the
activity and reasonably foreseeable.” United States v. Francis, 367 F.3d 805, 821 (8th
Cir. 2004); see U.S.S.G. § 1B1.3(a)(1)(B). Accordingly, to attribute a quantity of
drugs to Alexander, the factfinder must “find by a preponderance of the evidence that
the transaction or activity” was: 1) “in furtherance of the conspiracy;” and 2) “either
known to that defendant or reasonably foreseeable to him.” United States v. Atkins,
250 F.3d 1203, 1212 (8th Cir. 2001). Under this calculus, the factfinder may consider
drug amounts from transactions that Alexander was not directly involved in, so long
as the other transactions were “part of the same course of conduct or scheme.” Id.
(quoting United States v. Brown, 148 F.3d 1003, 1008 (8th Cir. 1998)). In this case,
-8-
the district court only considered those quantities of methamphetamine that were
distributed by Lopez after Alexander acted as a lookout for the meeting in which
Pettrone and Lopez met to discuss future drug transactions. The delivery of twelve
pounds of methamphetamine occurred four days after Alexander became involved in
the conspiracy. The delivery of that amount of methamphetamine was reasonably
foreseeable to him given his participation as a lookout for the earlier negotiations.
Although Alexander did not participate directly in the sale of twelve pounds of
methamphetamine, Alexander’s actions were part of the same conspiracy.
Alexander argues that the district court erred because there was no factual basis
for concluding that he knew of, or could have reasonably foreseen, the amount of
drugs involved. The district court’s finding that the amount was reasonably
foreseeable does not constitute clear error. The drug paraphernalia found in
Alexander’s apartment, including digital scales commonly used to weigh controlled
substances, provide evidence that Alexander was aware of the size of Lopez’s drug
transactions. Alexander knew that Lopez’s deal was sufficiently valuable and
dangerous to attract the attention of the police and therefore require a lookout.
Further, the baggies of drugs found throughout the apartment and vehicles
demonstrate that Alexander was aware of the presence of drugs in varying amounts
throughout his apartment. This evidence, along with his service as a lookout and
willingness to confront the police show a “substantial level of commitment to the
conspiracy.” Brown, 148 F.3d at 1008. Commitment to the conspiracy, along with
degree to which a defendant benefitted from his co-conspirators actions, are “factors
relevant to foreseeability.” Id. This evidence shows a sufficient level of commitment
to make the amount attributed to Alexander reasonable. This is not a case where
paraphernalia and other evidence suggest a certain quantity range and a sentencing
court finds a quantity disproportionate to what the evidence suggests. Rather, this
situation is analogous to the person who transports a quantity of drugs in a suitcase
without knowing the amount in the suitcase. U.S.S.G. § 1B1.3 n. 2(a)(1). While
Alexander may not have known the precise quantity of drugs involved in the
-9-
transaction for which he was a lookout, the amount attributed to him was reasonably
foreseeable to Alexander. We hold, therefore, that the district court’s attribution of
twelve pounds of methamphetamine to Alexander does not constitute clear error.
III.
Alexander asserts that the district court’s drug quantity calculation violated his
rights under Blakely v. Washington, 124 S.Ct. 2531 (2004), because those findings
were neither admitted by him nor made by a jury based upon proof beyond a
reasonable doubt.
In Blakely, the Supreme Court held that the imposition of a sentence
enhancement above the State of Washington’s Sentencing Reform Act’s range, based
solely on the factual findings of the sentencing judge, violated the defendant’s Sixth
Amendment rights. Blakely, 124 S. Ct. at 2537. The imposition constituted a Sixth
Amendment violation because the findings were neither admitted by the defendant
nor found by a jury beyond a reasonable doubt. Id. Following Blakely and while this
appeal was pending, the Court held in United States v. Booker, 125 S.Ct. 738 (2005),
that “the Sixth Amendment as construed in Blakely does apply to the [Federal]
Sentencing Guidelines.” Booker, 125 S.Ct. at 746. Under the Booker regime, “[a]ny
fact (other than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by . . . a jury verdict must
be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Id. at
756.
Although Alexander did object to the district court’s finding of sufficient
evidence to support his conviction and the quantity of drugs attributed to him, he did
not raise a Sixth Amendment objection. Accordingly, our review is limited to
determining whether Alexander’s sentence constitutes plain error. See United States
v. Pirani, 406 F.3d 543, 2005 WL 1039976, *4 (8th Cir. Apr. 29, 2005). To establish
-10-
plain error, Alexander must show that (1) there was an error; (2) the error was plain;
and (3) that the error affected substantial rights. Johnson v. United States, 520 U.S.
461, 466-67 (1997). “If all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if the error seriously
affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id.
(internal quotations omitted). Further, the defendant has the burden of proving plain
error. United States v. Olano, 507 U.S. 725, 734-35 (1993).
In Pirani, we held that a Booker/Blakely error “affects substantial rights” if
there is a reasonable probability that but for the error he would have received a more
favorable sentence. Pirani, 406 F.3d 543, at *6. In this case, Alexander, like the
defendant in Pirani, has not shown a “reasonable probability” the district court would
have imposed a more favorable sentence if the Guidelines had been applied in an
advisory manner, rather than in a binding fashion. The fact that Alexander was
sentenced at the bottom of the Guideline range “is insufficient, without more, to
demonstrate a reasonable probability that the court would have imposed a lesser
sentence absent the Booker error.” Pirani, 406 F.3d 543, at *7. Because the record,
when taken as a whole, does not indicate that the district court would have imposed
a more favorable sentence under the new sentencing regime, Alexander cannot
establish the substantial rights prong of the analysis. Accordingly, he fails to meet
his burden to prove that the district court committed plain error in imposing the
sentence enhancements.
For the foregoing reasons, we affirm Alexander’s conviction and sentence.
______________________________
-11-