United States v. Jorge Tafolla Buenrostro

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15259 JUNE 29, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 04-00055-CR-01-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee
Cross-Appellant,

versus

JORGE TAFOLLA BUENROSTRO,
a.k.a. Jorge Tafolla,

Defendant-Appellant
Cross-Appellee.

________________________

Appeals from the United States District Court
for the Northern District of Georgia
_________________________

(June 29, 2006)

Before DUBINA, BARKETT and HULL, Circuit Judges.

PER CURIAM:
 Jorge Tafolla Buenrostro appeals his convictions for possession of firearms

by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and distribution of

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii), and 851.

Buenrostro argues that: (1) Section 922(g)(1) is an unconstitutional exercise of

Congress’s Commerce Clause power, both on its face and as applied to his case;

(2) there was not sufficient evidence to support his convictions under § 922(g) and

21 U.S.C. § 851; and (3) there was not sufficient evidence to support his

conviction for methamphetamine distribution

The government cross-appeals Buenrostro’s sentence for methamphetamine

distribution, arguing that he should have been sentenced to a statutory minimum of

20 years’ imprisonment, pursuant to 21 U.S.C. § 841(b)(1)(A)(viii), instead of 10

years’ imprisonment, pursuant to § 841(b)(1)(B)(viii), because the district court

should have found him responsible for 50 grams or more of methamphetamine.

First, Buenrostro’s constitutional challenges to § 922(g)(1) must fail. We

have consistently upheld the facial constitutionality of § 922(g)(1). See United

States v. Scott, 263 F.3d 1270, (11th Cir. 2001); United States v. McAllister, 77

F.3d 387, 389-90.(11th Cir. 1996). Furthermore, Buenrostro’s as applied

challenge, as well as his challenge to the sufficiency of the evidence, must fail. An

expert testified at trial that, based on their make and serial numbers, the guns found

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at Buenrostro’s residence were manufactured in California and Florida, could not

have been manufactured in Georgia, and had traveled in and affected interstate

commerce. Thus the requisite interstate nexus of the firearm was satisfied. See

Scott, 263 F.3d at 1274 (holding that an interstate nexus was demonstrated by the

government when an ATF Special Agent testified that the .25 caliber Raven Arms

semiautomatic pistol that the defendant had possessed was manufactured in

California and had moved in interstate commerce to Georgia, where the defendant

was caught with the weapon).

Second, we reject Buenrostro’s argument that there was insufficient

evidence upon which to find him a convicted felon. The record provides sufficient

evidence upon which a reasonable jury could find beyond a reasonable doubt that

Buenrostro was a convicted felon because (1) the certified copy of the Texas

conviction was properly admitted as non-testimonial, as it was routinely and

mechanically kept and prepared long before the alleged offenses, see United States

v. Cantellano, 430 F.3d 1142, 1145-46(11th Cir. 2005), cert. denied, 126 S.Ct.

1604 (2006) (citation omitted), and (2) the certified conviction was accompanied

by Probation Officer Printup’s testimony that Buenrostro was his

probationer—under Printup’s supervision, paying probation fees, and reporting to

Printup—for almost an entire year. Accordingly, the government provided

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sufficient evidence for the jury to determine that Buenrostro was a convicted felon

for purposes of satisfying 18 U.S.C. § 922(g) and 21 U.S.C. § 851.

Finally, we reject the argument that there was insufficient evidence to

support a conviction for distribution of methamphetamine. First, a number of law

enforcement officials testified that they (1) witnessed Buenrostro hand a blue Wal-

Mart shopping bag to confidential informant Marco Marquez, the contents of

which were later found to be methamphetamine, and (2) recovered from

Buenrostro’s residence digital scales and plastic baggies, which were likely used in

the distribution of illegal drugs. In fact, one detective specifically testified that he

and another detective had searched Marquez’s vehicle before the March 30

meeting between Marquez and Buenrostro, and the drugs in the Wal-Mart

shopping bag could not have come from any source other than Buenrostro. The

jury was shown the pound of a mixture containing methamphetamine and a

stipulation, signed by Buenrostro, that the mixture weighed 443.6 grams, with a 24

percent purity level, containing 106.8 grams of pure methamphetamine, and the

box of baggies and the scales recovered from Buenrostro’s residence. Further,

Marquez testified that he and Buenrostro agreed on March 3, 2004 that Buenrostro

would front (“loan”) him one pound of methamphetamine, and the two met on

March 30 to complete the transaction. This testimony was accompanied by a

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recorded conversation from March 30 between the two men, in which Buenrostro

mentioned twice that there were four ounces of a substance. The jury also heard

evidence that Marquez stood to gain personally by testifying favorably for the

government in Buenrostro’s trial. Despite Buenrostro’s contention to the contrary,

Marquez’s testimony—corroborated by multiple exhibits and the testimony of

multiple law enforcement officers—was not incredible as a matter of law. Thus,

there was a sufficient basis for a reasonable trier of fact to determine that

Buenrostro knowingly and intentionally distributed methamphetamine. See 21

U.S.C. § 841(a)(1). Accordingly, Buenrostro’s challenge to this conviction fails.

On cross-appeal, the government argues that the district court clearly erred

in failing to enhance Buenrostro’s statutory minimum sentence based on the

amount of pure methamphetamine to which he stipulated. The government asserts

that the court’s finding that the lack of a jury finding regarding the weight of pure

amphetamine precluded the enhancement was in error because Buenrostro

admitted, via stipulation, that the offense involved more than 100 grams of pure

methamphetamine—an amount that triggered the statutory minimum enhancement.

Further, the government argues that, even after United States v. Booker, 543 U.S.

220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a sentencing court is still permitted to

make findings of fact that increase a statutory minimum sentence.

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 The statutory penalties for controlled substance offenses under 21 U.S.C.

§ 841(a)(1) are listed subsection (b) of that statute. See 21 U.S.C. § 841(b). For a

defendant with a prior felony drug conviction who committed an offense

involving:

50 grams or more of methamphetamine, its salts, isomers, and salts of
its isomers or 500 grams or more of a mixture or substance containing
a detectable amount of methamphetamine, its salts, isomers, or salts of
its isomers[,] . . . [the sentence is] . . . a term of imprisonment which may not be
less than 20 years and not more than life imprisonment[.]

21 U.S.C. § 841(b)(1)(A)(viii). On the other hand, for a defendant with a prior

felony drug conviction who committed an offense involving:

5 grams or more of methamphetamine, its salts, isomers, and salts of
its isomers or 50 grams or more of a mixture or substance containing a
detectable amount of methamphetamine, its salts, isomers, or salts of
its isomers[,] . . . [the sentence is] . . . a term of imprisonment which may not be
less than 10 years and not more than life imprisonment[.]

21 U.S.C. § 841(b)(1)(B)(viii). Accordingly, the issue here concerns the

calculation of the statutory minimum sentence, not the Sentencing Guidelines.

In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435

(2000), the Supreme Court held that “[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

Id., 530 U.S. at 490, 120 S.Ct. at 2362-63 (emphasis added). Then, in Booker, the

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Supreme Court “reaffirm[ed] [its] holding in Apprendi: Any fact (other than a prior

conviction) which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved by a jury beyond a reasonable doubt.” Id. at

244, 125 S.Ct. at 756 (emphasis added).

We have held that, despite Booker’s remedial holding that the Sentencing

Guidelines are merely advisory, district courts remain bound by statutory minimum

sentences. See United States v. Shelton, 400 F.3d 1325, 1333 n.10 (11th Cir.

2005). So long as the district court applies the guidelines as advisory, nothing in

Booker prohibits it from making, under a preponderance-of-the-evidence standard,

additional factual findings that go beyond a defendant’s admission. United States

v. Chau, 426 F.3d 1318, 1324 (11th Cir. 2005).

Here, the district court clearly erred by finding that “[t]he issue was still for

the jury to find as to what the defendant was responsible for.” Indeed, the district

court had the authority to find, by a preponderance-of-the-evidence standard, the

amount of actual methamphetamine for which Buenrostro was responsible.

See Chau, 426 F.3d at 1324. Moreover, as Apprendi and Booker do not apply to

statutory minimum sentences, and Buenrostro faced a maximum sentence of life

imprisonment regardless of which drug quantity he was held accountable for, had

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the district court determined the mandatory minimum sentence based on its own

drug quantity finding, there would have been no constitutional error. Accordingly,

we vacate and remand to allow the district court to make findings regarding what

drug quantity and purity it believes a preponderance of the evidence supports.

AFFIRMED in part; VACATED and REMANDED in part.

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