United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
November 20, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
05-41027
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CRYSTAL CHARLENE CANTWELL,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of Texas
Before BARKSDALE, BENAVIDES, and OWEN, Circuit Judges.
BENAVIDES, Circuit Judge:
Crystal Charlene Cantwell was convicted of one count of
conspiracy to manufacture methamphetamine and one count of aiding
and abetting the possession of pseudoephedrine with the intent to
manufacture methamphetamine. She now appeals her conviction,
arguing insufficiency of the evidence and ineffective assistance of
counsel at trial. The government contends that her appeal is
untimely because Cantwell failed to file her notice of appeal
within ten days of entry of the judgment. We reject the
government’s argument and consider the appeal to be timely filed.
Nevertheless, we find that there was sufficient evidence to support
Cantwell’s conviction, and we therefore AFFIRM. We also find that
the record is not sufficiently developed for this court to consider
Cantwell’s ineffective assistance claim. She should present that
issue to the district court in the first instance.
I. TIMELINESS OF THIS APPEAL
As a preliminary matter, we note that Ms. Cantwell’s notice of
appeal was timely filed. A criminal defendant ordinarily has ten
days from the entry of the judgment to file a notice of appeal.
FED. R. APP. P. 4(b)(1)(A). A district court may extend the time to
file by no more than 30 days. FED. R. APP. P. 4(b)(4); United
States v. Awalt, 728 F.2d 704, 705 (5th Cir. 1984). Ms. Cantwell
filed her actual notice of appeal on June 27, 2005, more than 40
days after the entry of judgment in this case. However, Cantwell
did file a motion for extension of time during the ten-day period,
and such a filing can serve as the functional equivalent of a
notice of appeal. See Smith v. Barry, 502 U.S. 244, 248–49 (1992)
(“If a document filed within the time specified by Rule 4 gives the
notice required by Rule 3, it is effective as a notice of
appeal.”).
To act as the functional equivalent of a notice of appeal, the
motion must set forth (1) the party taking the appeal, (2) the
judgment being appealed from, and (3) the court to which the party
is appealing. See FED. R. APP. P. 3(C)(1). Cantwell’s motion
clearly sets forth the parties’ names, as well as the date of her
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underlying judgment. It does not state the court to which she was
appealing, but that omission is irrelevant because this is the only
court to which she could appeal. See McLemore v. Landry, 898 F.2d
996, 999 (5th Cir. 1990) (finding third element met where only one
avenue of appeal exists). Therefore, keeping in mind that Rule 3
must be liberally construed in favor of appeals, Smith, 502 U.S. at
248, we have no hesitation in finding that Cantwell’s motion for
extension of time was sufficient notice to the government of her
intent to appeal, and we therefore exercise jurisdiction.
II. FACTS AND STANDARD OF REVIEW
On January 8, 2004, at about 11:00 p.m., Officer Ricardo Adame
stopped a silver Ford Taurus for speeding. Inside the car were
Crystal Charlene Cantwell, William Travis Reagan, and Emily Rice.
During the stop, Officer Adame noticed several empty boxes of
Actifed cold medicine on the floor of the car. The officer knew
that Actifed, which contains pseudoephedrine, could be used to
manufacture methamphetamine. A later search of the car revealed a
total of 1,296 Actifed tablets and several lithium batteries.
Lithium is also a key ingredient in methamphetamine.
Cantwell was indicted on one count of conspiracy to
manufacture methamphetamine (Count One) and one count of aiding and
abetting the possession of 1,296 pseudoephedrine tablets with the
intent to manufacture methamphetamine (Count Two). A jury
convicted her of both counts, and the district court sentenced her
to concurrent prison terms of 76 months.
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At trial, the government relied heavily on the testimony of
Emily Rice. She testified that she was “drug buddies” with Mr.
Reagan for a period of about eight months, during which time they
procured and used drugs together. Specifically, she explained that
she “would give [ingredients] to [Reagan] and he would take them to
somebody else and get drugs for that.” She also stated that “he
would get ingredients from me and other people and he would take
them out to people that were manufacturing.” She did not know
Cantwell very well, but said that Cantwell was Reagan’s friend.
According to Rice, on January 8, the three companions drove
from Victoria, Texas to Corpus Christi. There they visited several
stores, where they stole the Actifed and batteries. On the way
back to Victoria, while Cantwell was driving, Rice took the pills
out of the boxes, bundled them up, and handed them up to Reagan for
safekeeping. The plan was for Reagan to take the drugs to an
unnamed person and exchange them for drugs. On the ride back to
Victoria, however, Officer Adame pulled the car over and arrested
the three occupants.
Cantwell now challenges her conviction on the grounds that it
is not supported by sufficient evidence. When considering a
sufficiency challenge, we apply the rational jury standard, under
which we must “decide whether, viewing all the evidence in the
light most favorable to the verdict, a rational trier of fact could
have found that the evidence established the essential elements of
the offense beyond a reasonable doubt.” United States v.
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Villarreal, 324 F. 3d 319, 322 (5th Cir. 2003).
III. SUFFICIENCY OF THE EVIDENCE
A. CONSPIRACY TO MANUFACTURE METHAMPHETAMINE
To convict Cantwell under 21 U.S.C. § 846, the government must
prove “(1) the existence of an agreement between two or more
persons to violate the narcotics laws, (2) that each alleged
conspirator knew of the conspiracy and intended to join it, and (3)
that each alleged conspirator did participate in the conspiracy.”
United States v. Stone, 960 F.2d 426, 430 (5th Cir. 1992).
The evidence at trial was certainly sufficient to support a
finding that Rice and Reagan conspired to manufacture
methamphetamine. Rice testified that she and Reagan had been
working together to procure drugs for their personal use for a
period of about eight months. She would acquire ingredients and
give them to Reagan, who would take them to manufacturers in
exchange for finished drugs. From this evidence a juror could
reasonably conclude that Rice and Reagan were engaged in a
conspiracy to manufacture methamphetamine.
Similarly, the evidence was sufficient for a rational juror to
conclude that Cantwell knowingly and intentionally joined the
conspiracy. Cantwell was found in joint possession of 1,296
pseudoephedrine tablets and several lithium batteries. Ms. Rice
testified that she and Cantwell stole the tablets and batteries
together, and that the plan was to have Reagan exchange the
ingredients for drugs as he had done previously. All three
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participants discussed this plan ahead of time. Afterwards, while
Cantwell drove them back to Victoria, Rice removed the goods from
their packages, bundled them, and handed them up to Reagan, who was
sitting next to Cantwell.
These facts allow for the inference that Cantwell knew of and
participated in the conspiracy to violate the narcotics laws. Cf
United States v. Michelena-Orovio, 719 F.2d 738, 752 (5th Cir.
1983) (finding that defendant’s knowledge and joinder in conspiracy
to distribute marijuana could be inferred where quantity was far
too large for private consumption).1 Viewing all the evidence in
1
Cantwell points to other testimony that suggests that she was
acting independently of Rice and Reagan. Specifically, she notes
that Rice testified that Reagan offered to buy Cantwell’s stolen
pseudoephedrine from her and she refused. Cantwell argues that
this is an indication that she was acting independently of the
other two participants, and not engaged in the conspiracy.
However, Cantwell’s actions indicate otherwise. For instance, she
made no effort to keep her portion of the stolen goods separate
from the rest; she merely dumped them out into the backseat of the
car, where Rice bundled them, together with the pills that Rice had
stolen, and handed them to Reagan. Reagan then kept the pills and
the batteries together in a black bag under his feet in the front
seat. Officer Adame testified that he found the majority of the
pills in that black bag, along with a few others that were on the
floor by Reagan’s feet. Officer Adame did not report finding any
contraband at all in Cantwell’s tan purse, which is what she had
used to steal the pills in the first place. These facts belie the
notion that Cantwell was acting independently of Rice and Reagan
and attempting to keep her share of the pills for herself. A more
plausible reading of Rice’s testimony is that Reagan was simply
offering to buy Cantwell out of the conspiracy once she had stolen
the pills, so that he could take her share of the resulting
methamphetamine. In that light, her refusal of Reagan’s offer
would demonstrate a desire to remain a part of the conspiracy, not
to act independent of it. Of course, we need not speculate as to
precisely how the jury interpreted the testimony. Our reading
convinces us that there was sufficient evidence in the record for
a rational juror to conclude that the defendant was guilty. United
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the light most favorable to the verdict, we believe that a rational
juror could have found that all the elements of the offense were
proven beyond a reasonable doubt. Villarreal, 324 F. 3d at 322
(5th Cir. 2003).
B. AIDING AND ABETTING POSSESSION WITH INTENT TO MANUFACTURE
To prove possession with intent to manufacture, the Government
was required to prove (1) that Cantwell knowingly possessed
pseudoephedrine, (2) that she possessed it with the intent to
manufacture a controlled substance, and (3) that the substance was
pseudoephedrine. 21 U.S.C. § 841(c)(1). Cantwell contests only
the second element.
Even if Cantwell did not intend to manufacture drugs herself,
evidence that she knew of and intended “to further the goals of a
manufacturing operation” is sufficient for a conviction under 21
U.S.C. § 841(c)(1). United States v. Leed, 981 F.2d 202, 206 (5th
Cir. 1993). We find that the evidence set forth above was also
sufficient to allow a reasonable juror to infer that Cantwell knew
of the plan to manufacture drugs, and that she intended to further
that operation by her actions on January 8.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Cantwell also raises an ineffective assistance of counsel
claim on this, her direct appeal. “[T]he general rule in this
circuit is that a claim for ineffective assistance of counsel
States v. Villarreal, 324 F. 3d 319, 322 (5th Cir. 2003).
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cannot be resolved on direct appeal when the claim has not been
raised before the district court since no opportunity existed to
develop the record on the merits of the allegations.” United
States v. Pierce, 959 F.2d 1297, 1301 (5th Cir.), cert. denied, 506
U.S. 1007 (1992) (citations omitted). Since Cantwell’s ineffective
assistance claim has not been presented to the district court, we
decline to review it now. This in no way prejudices Cantwell’s
claim should she choose to raise it in a later postconviction
proceeding.
V. CONCLUSION
For the reasons set forth above, we AFFIRM Cantwell’s
conviction on both counts, and decline to review her ineffective
assistance claim at this time.
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