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.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-986-1
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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this opinion should not be published and is not precedent except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
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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
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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.
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