United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-3598
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Thomas Michael Morelos, *
*
Appellant. *
___________
Submitted: June 11, 2008
Filed: October 16, 2008
___________
Before MURPHY, BYE, and SHEPHERD, Circuit Judges.
___________
BYE, Circuit Judge.
A jury convicted Thomas Michael Morelos of one count of conspiracy to
distribute and possess with intent to distribute more than 500 grams of
methamphetamine mixture and more than 100 kilograms of marijuana in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The district court1 sentenced him to
306 months of imprisonment followed by five years of supervised release. Morelos
appeals his conviction and sentence. We affirm.
1
The Honorable Donald E. O'Brien, United States District Judge for the
Northern District of Iowa.
I
In April 2006, Morelos met a man named José Bernal at a car dealership in
South Sioux City, Nebraska, and the two discussed Bernal fronting Morelos two
pounds of marijuana. After Morelos assisted Bernal in distributing the marijuana,
Bernal began working with Morelos. Under Morelos's direction, Bernal went to
Rockford, Illinois, six or seven times to pick up marijuana and transport it back to
Sioux City. Bernal's girlfriend, Christy Swearingen, accompanied him on these trips.
Bernal and Swearingen also made two trips to Texas to transport marijuana, using a
false-bottomed livestock trailer owned by Morelos on one of the trips. Bernal
distributed marijuana in the Sioux City area at the direction of Morelos and gave the
money from those sales to Morelos.
Morelos was also involved in trafficking drugs with a man named Raphael
Murrillo-Guzmán. For a period of three years, Murrillo-Guzmán followed Morelos's
orders with respect to drug trafficking and made deliveries at the direction of Morelos.
Murrillo-Guzmán testified that, along with another man named Edwin Alvarez, he
delivered about ten "buckets"2 of methamphetamine under Morelos's supervision.
On January 4, 2007, a drug task force asked a Sioux City police officer to pull
over a black GMC Sonoma occupied by Swearingen and Bernal. During the stop,
Bernal volunteered that there were four pounds of marijuana in the truck. As a result
of the evidence found during the stop and ensuing investigation, a grand jury indicted
Morelos for conspiring to distribute and possess with intent to distribute
methamphetamine and marijuana. The case went to trial. Following a three-day trial,
a jury found Morelos guilty.
2
Murrillo-Guzmán described the buckets used to deliver the methamphetamine
as being eight to ten inches high with a diameter of eight inches – the type of bucket
used for plaster for drywall. Trial Tr. at 127-28.
-2-
At sentencing, the district court calculated Morelos's base offense level at 38
pursuant to United States Sentencing Guidelines (U.S.S.G.) § 2D1.1(a)(3)(c)(1) based
on the amount of methamphetamine and marijuana involved in the offense. The
district court also found Morelos was a manager or supervisor in a drug conspiracy
involving five or more people and added three levels to the base offense level under
U.S.S.G. § 3B1.1(b). With a criminal history category of II, Morelos's advisory
guideline sentencing range was 360 months to life. Acting sua sponte, the district
court gave Morelos a fifteen percent reduction from the bottom end of the advisory
guideline range and imposed a sentence of 306 months followed by five years of
supervised release.
Morelos filed a timely appeal challenging the sufficiency of the evidence to
support the conviction. Morelos also appealed his sentence challenging the drug
amounts attributed to him, and the three level enhancement for his role in the offense.
Morelos also contends on appeal his 306-month sentence is unreasonable.
II
We first address Morelos's challenge to the sufficiency of the evidence "viewing
[the] evidence in the light most favorable to the government[.]" United States v.
Piwowar, 492 F.3d 953, 955 (8th Cir. 2007). "The standard for determining the
sufficiency of the evidence is strict, and a guilty verdict should not be lightly
overturned." United States v. Jiminez-Perez, 238 F.3d 970, 972-73 (8th Cir. 2001).
We will only reverse if no reasonable jury could have found Morelos guilty beyond
a reasonable doubt. See United States v. Dabney, 367 F.3d 1040, 1042 (8th Cir.
2004).
To convict Morelos, the government was required to prove beyond a reasonable
doubt that: (1) two or more persons reached an agreement to distribute and possess
with intent to distribute a controlled substance; (2) Morelos voluntarily and
-3-
intentionally joined the agreement; and (3) at the time Morelos joined the agreement,
he knew its essential purpose. See United States v. Harris, 493 F.3d 928, 931 (8th Cir.
2007) (citing United States v. Sherman, 440 F.3d 982, 990 (8th Cir. 2006)).
The evidence produced at trial showed Morelos conspired with several persons
to possess and distribute methamphetamine and marijuana. Three cooperating
witnesses testified they were personally involved with Morelos's drug dealing
activities. The testimony of each witness was corroborated by testimony from the
other co-conspirators, as well as disinterested witnesses, phone records, financial
records, and currency found during a search of Morelos's residence. This evidence
was more than sufficient to support the jury's verdict, notwithstanding Morelos's
challenge to the credibility of the three cooperating witnesses. See Dabney, 367 F.3d
at 1043 ("[W]e do not review questions involving the credibility of witnesses, but
leave credibility questions to the jury."); see also United States v. Frauendorfer, 428
F.3d 1115, 1118 (8th Cir. 2005) (holding the testimony of a single cooperating co-
conspirator is sufficient to support a guilty verdict).3
We next address Morelos's sentencing challenges to the drug amounts attributed
to him, and the three-level enhancement he received for being a manager or supervisor
in a conspiracy involving five or more persons. We review the district court's factual
findings on both issues for clear error. United States v. Thompson, 210 F.3d 855,
860-61 (8th Cir. 2000).
3
Morelos also asserts his trial counsel was ineffective because he failed to object
to certain statements at trial. The record below is incomplete on this issue, however,
and the district court did not address it. We therefore decline to address it. See United
States v. Logan, 49 F.3d 352, 361 (8th Cir. 1995) (refusing to address ineffective
assistance claim on direct appeal when the district court had not examined the merits
of the claim); United States v. Kenyon, 7 F.3d 783, 785 (8th Cir. 1993) (declining to
address ineffective assistance claim on direct appeal when a proper factual record was
not made in the district court).
-4-
With respect to drug quantity, the district court based its findings on the
evidence presented at trial, which showed: (1) Bernal and Swearingen made six or
seven trips to Rockford, Illinois, transporting between 100 and 200 pounds of
marijuana each time; (2) Bernal and Swearingen made two trips to Texas, transporting
just over 250 pounds of marijuana in total; (3) Murrillo-Guzmán and Alvarez
delivered ten "buckets" of methamphetamine at the direction of Morelos; (4) Morelos
received a shipment of ten pounds of pure methamphetamine at a farm in Nebraska
which, when cut, resulted in approximately fifty pounds of a mixture containing
methamphetamine; and (5) Alvarez delivered 700 pounds of marijuana to Rockford,
Illinois, at the direction of Morelos. Based on this evidence the district court
attributed the equivalent of 46,060 kilograms of marijuana to Morelos, triggering a
base offense level of 38 (requiring 30,000 kilograms or more of marijuana).
Morelos does not contend the trial testimony was insufficient to support a
finding of the equivalent of 46,060 kilograms of marijuana. Instead, Morelos argues
the district court erred because it did not independently evaluate the credibility of the
trial testimony at the time of sentencing. See United States v. Gutierrez, 437 F.3d
733, 736-37 (8th Cir. 2006) (concluding a district court erred by relying upon a jury
verdict to impose an obstruction enhancement, and by refusing to make an
independent determination as to drug quantity at the time of sentencing). We
disagree.
At sentencing, the district court discussed the credibility of the trial witnesses
as to the drug amounts involved. After dwelling on its concerns about witness
credibility – noting in particular that Murrillo-Guzmán's testimony may have had
shortcomings – the district court ultimately concluded "I don't think that I can say and
find here that he too was worthless as a witness." Sent. Tr. at 24. Additionally, the
district court initially expressed concerns about the absence of Morelos's name in
documents relating to Edwin Alvarez. After being informed Morelos was, in fact,
identified in these documents but under the name "Santana," the district court accepted
-5-
the explanation. This colloquy regarding Edwin Alvarez, as well as the comments
regarding Murillo-Guzmán, indicate the district court independently evaluated the
credibility of the witnesses with respect to drug quantity at the time of sentencing.
Our review of the record satisfies us that, while the district court may have had
concerns about witness credibility, it ultimately independently found a sufficient
amount of drugs could be attributed to Morelos to trigger a base offense level of 38.
With respect to the three-level enhancement for role in the offense, Morelos
asserts the evidence does not support the district court's conclusion he was a manager
or supervisor of a conspiracy involving at least five people. We disagree.
The district court found there were at least five people involved in the
conspiracy: Morelos (see United States v. Payne, 119 F.3d 637, 646 (8th Cir. 1997)
(indicating the defendant counts as a participant)), Bernal, Alvarez, Murillo-Guzmán,
and Swearingen. The enhancement under § 3B1.1(b) applies as long as Morelos
managed or supervised at least one other member of the conspiracy. United States v.
Gordon, 510 F.3d 811, 818 (8th Cir. 2007). Bernal, Murillo-Guzmán, and Alvarez
all testified that at some point during the conspiracy they were acting at the direction
of Morelos. Morelos directed Bernal to go on six or seven trips to Rockford, Illinois,
and to Texas; Morelos directed Murillo-Guzmán to deliver ten "buckets" of
methamphetamine; and Morelos paid Alvarez $1000 a week to transport drugs and
supplied him with the vehicle used to transport the drugs. Given this evidence, the
district court did not clearly err in finding Morelos was a manager or supervisor.
Finally, Morelos challenges the reasonableness of the 306-month sentence he
received. More specifically, Morelos contends the district court – in imposing a
fifteen percent downward variance sua sponte – mistakenly believed its discretion to
vary downward even more was limited by United States v. Gall, 446 F.3d 884 (8th
Cir. 2006), which was later reversed by Gall v. United States, 128 S.Ct. 586 (2007).
Because Morelos failed to object to the district court's interpretation of the applicable
-6-
law at the time of sentencing, we review this issue for plain error. See Johnson v.
United States, 520 U.S. 461, 467 (1997) (holding plain error review applies absent a
preserved objection even when the error results from a change in the law that occurs
while the case is pending). Thus, Morelos must show there was an error, the error
was plain, his substantial rights were affected, and he must convince us to exercise our
discretion to correct the error because it seriously affected the fairness, integrity, or
public reputation of the judicial proceedings. E.g., United States v. Marston, 517 F.3d
996, 1004 (8th Cir. 2008).
Morelos argues the Supreme Court's decision in Gall "very well could have
affected the district court's opinion on how much of a variance he could legally give
[Morelos]." Appellant's Br. at 24. In Gall, however, the Supreme Court directed us
to "review all sentences – whether inside, just outside, or significantly outside the
Guidelines range – under a deferential abuse-of-discretion standard." 128 S.Ct. at
591. The Supreme Court also noted if a district court "decides that an outside-
Guidelines sentence is warranted, [it] must consider the extent of the deviation and
ensure that the justification is sufficiently compelling to support the degree of the
variance. We find it uncontroversial that a major departure should be supported by
a more significant justification than a minor one." Id. at 597.
In this case, applying the abuse-of-discretion standard as we must (through the
lens of plain error review), it is significant the ultimate sentence imposed by the
district court was below the applicable guideline range. Additionally, the district court
did not state any "sufficiently compelling" reasons that might have justified a more
significant variance. Finally, we see nothing in the record to indicate the district court
may have been inclined to impose a more favorable sentence, but refrained from doing
so because it felt constrained by then-applicable law. Under these circumstances,
Morelos has failed to convince us a plain error affected his substantial rights, or that
the district court abused its discretion by imposing an unreasonable sentence.
-7-
III
We affirm Morelos's conviction and sentence.
______________________________
-8-