United States v. Soto

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 22, 2006

Charles R. Fulbruge III
Clerk
No. 05-50487
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICARDO ANTONIO SOTO,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-986-1
--------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Ricardo Antonio Soto (Soto) was convicted

by a jury of conspiring to manufacture five grams or more of

methamphetamine, manufacturing five grams or more of

methamphetamine, conspiring to possess with intent to distribute

five grams or more of methamphetamine, and possessing with intent

to distribute five grams or more of methamphetamine. Soto was

sentenced to 168 months of imprisonment for each count, to run

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
concurrently, and eight years of supervised release for each count,

to run concurrently.

Soto challenges venue in the Western District of Texas as to

all counts of the superceding indictment. After the close of the

government’s case, Soto moved for a judgment of acquittal and

stated that he was challenging venue as to counts I and III. As a

result, Soto properly preserved the issue of venue for counts I and

III but waived his challenge to venue as to counts II and IV. See

United States v. Carreon-Palacio, 267 F.3d 381, 391-93 (5th Cir.

2001).

We generally review venue issues for abuse of discretion.

United States v. Delgado-Nunez, 295 F.3d 494, 496 (5th Cir. 2002).

As “a district court by definition abuses its discretion when it

makes an error of law,” however, our standard of review in

instances such as this is effectively de novo. Id. (internal

quotation marks, citation, and brackets omitted).

Venue is challenged as to Soto’s conspiracy charges.

Conspiracy is a continuing offense, so venue is proper in any

district where the agreement was formed or an overt act occurred,

even if the individual defendant has “never set foot” in the

district. United States v. Winship, 724 F.2d 1116, 1125 (5th Cir.

1984); United States v. Davis, 666 F.2d 195, 199, n.5 (5th Cir.

1982); 18 U.S.C. § 3237. Our review of the record convinces us

that there was sufficient evidence that the pseudoephedrine

purchased by coconspirator Michael Shuck (Shuck) at the Target

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stores located in the jurisdiction of the Western District of Texas

was an overt act performed to effect the object of the conspiracy.

Therefore, venue was proper in the Western District of Texas.

Soto contends that the evidence is insufficient to prove his

guilt beyond a reasonable doubt. As Soto failed to renew his

objection to the denial of his motion for acquittal after the

defense rested, our review is limited to a determination whether

there was a manifest miscarriage of justice, which will be found to

exist only if the record is devoid of evidence pointing to guilt.

See United States v. Robles-Pantoja, 887 F.2d 1250, 1254 (5th Cir.

1989).

To obtain a conspiracy conviction under 18 U.S.C. § 846, “the

government must prove beyond a reasonable doubt (1) that an

agreement existed between two or more persons to violate the

applicable narcotics law... (2) that each alleged conspirator knew

of the conspiracy and intended to join it and (3) that each alleged

conspirator participated...voluntarily in the conspiracy.” United

States v. Medina, 161 F.3d 867, 872 (5th Cir. 1998).

Circumstantial evidence is sufficient to prove the existence of a

conspiracy, the elements of which “may be inferred from the

development and collocation of circumstances.” United States v.

Gonzales, 79 F.3d 413, 423 (5th Cir. 1996) (internal quotation

marks and citation omitted). A conviction under 18 U.S.C.

§ 841(a)(1) requires a showing that Soto knowingly manufactured

methamphetamine and that Soto knowingly possessed methamphetamine

3
with the intent to distribute. See Medina, 161 F.3d at 873; United

States v. Gourley, 168 F.3d 165, 169 (5th Cir. 1999). A review of

the evidence reveals that the jury reasonably could have found that

the elements of the charges were satisfied.

After receiving information that a methamphetamine cook was

taking place in a trailer at 307 Gala Way, # 8, in Chaparral, New

Mexico, the New Mexico State Police, with the assistance of agents

from the Drug Enforcement Agency (DEA), obtained a search warrant

for the trailer. When the agents executed the warrant, they

observed smoke and smelled odors that they associated with the

manufacturing of methamphetamine. When arresting Soto, who was one

of the occupants of the trailer at the time, agents noticed that

his hands were stained from iodine, a substance used in the

manufacturing of methamphetamine. Agents seized a number of

substances from the trailer and from Soto’s vehicle, including a

vial of methamphetamine from that vehicle and other items

consistent with the manufacture, usage, and distribution of

methamphetamine. The parties also stipulated that a DEA chemist

would testify that the methamphetamine lab was manufacturing five

grams or more of methamphetamine and that baggies, a coffee cup, a

jar, and coffee filters seized from the trailer tested positive for

methamphetamine.

Matthew Quero testified that, when Soto arrived at the

trailer, he had a bag of methamphetamine and a pipe and that Soto

put the methamphetamine in his pipe and passed the pipe around for

4
the occupants of the trailer to smoke. Approximately 30 minutes

after Soto arrived, he left the trailer, saying that he was going

to buy HEET, a substance used in manufacturing methamphetamine.

Quero further testified that Shuck was cooking methamphetamine

in the kitchen and the bathroom of the trailer and that Soto was

assisting Shuck. Quero stated that there were fumes in the trailer

and that he observed the “reaction and boilout” while Shuck and

Soto were cooking in the bathroom.

There was also testimony that, prior to April 13, 2004, Soto

had manufactured methamphetamine by himself and with Shuck.

Danielle Kays testified that a scale seized from the trailer

belonged to Soto and Shuck, and that they used the scale to measure

methamphetamine before putting it into small baggies. Kays also

testified that she got methamphetamine from Soto. Further

testimony revealed that Soto smoked methamphetamine at the trailer

on April 13, 2004.

Viewing the evidence and all inferences drawn from the

evidence in the light most favorable to the verdicts, the jury’s

guilty verdicts are not manifest miscarriages of justice. The

evidence is sufficient to sustain the jury’s verdicts of guilt

beyond a reasonable doubt.

Accordingly, the district court’s venue ruling is affirmed, as

are Soto’s convictions and sentences.

AFFIRMED.