F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
November 29, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 05-3102
C ARLO S PO RTILLO -Q U EZA DA,
also known as Luis Quezada,
Defendant-Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF KANSAS
(D.C. NO . 03-CR-20051-01-JW L)
B. Kay Huff, Lawrence, Kansas, for A ppellant.
Leon J. Patton, Assistant United States Attorney (Sheri M cCracken, Assistant
United States Attorney, on the brief) Office of the United States Attorney, Kansas
City, Kansas, for Appellee.
Before M cCO NNELL, B AL DOCK , and TYM KOVICH, Circuit Judges.
PE R C U RIA M .
Carlos Portillo-Quezada appeals his jury convictions arising from his
leadership of a methamphetamine distribution ring in Kansas City, Kansas.
Portillo-Quezada claims the trial court erred in (1) allowing him to appear at voir
dire with two co-defendants w ho were wearing prison clothing; (2) failing to
grant a m istrial when the prosecutor suggested at voir dire that his co-defendants
looked like drug dealers; (3) allowing the government to present evidence of an
uncharged murder on the grounds it was connected to the drug conspiracy; and (4)
imposing an unreasonable sentence.
W e disagree for the reasons discussed below and AFFIRM the district
court.
I. Background
This case arose from a Kansas City police investigation into a large scale
methamphetamine distribution ring. Police suspected the ring was organized and
operated by three brothers: Portillo-Quezada and Eloy and Raul Portillo. The
three brothers employed numerous other individuals as part of a drug conspiracy
to (1) buy and sell drugs; (2) obtain rental properties to use for drug transactions;
(3) deliver product; and (4) collect and enforce debts owed to the conspiracy.
As part of the police investigation, on April 10, 2003 an undercover police
officer purchased 55 grams of methamphetamine from Portillo-Quezada in a
controlled buy. The undercover officer paid for the drugs with $3,000 in marked
bills. The transaction took place at an apartment rented by Carl Rieger, a co-
conspirator of Portillo-Quezada, which was rented for the purpose of providing a
“storefront” for methamphetamine distribution. At that time, police also
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suspected that members of the conspiracy were involved in the murder of Bruce
Andrews, whose bullet-riddled body had been discovered on April 8.
Six hours after this transaction, Kansas City police executed a search
warrant on Rieger’s apartment. The officers executing the search found Portillo-
Quezada hiding in a bedroom closet wearing body armor and holding a loaded
9-millimeter handgun. M ethamphetamine was scattered about the apartment in
plain view.
Portillo-Quezada was arrested and searched. Police found on him $1,390
cash, including $1,090 of the marked bills used by the undercover agent earlier
that night. Portillo-Quezada’s brother, Eloy Portillo, was also arrested at the
apartment after he was found with drugs, $4,600 cash, and two receipts for the
rental of a trailer later found to have been used by the conspiracy for distribution
and storage. Several other individuals were arrested as a result of the raid, either
at the apartment or elsewhere based evidence found at the apartment.
Several days later, police questioned Noe Espino, whom police suspected
was part of the drug ring. Espino was arrested after he confessed in a police
interview that Portillo-Quezada paid him to locate Andrews, the murder victim,
and assist in his killing. Espino disclosed that he lured Andrews into a car w ith
the promise of methamphetamine and stolen wheel rims, took him to a vacant lot
where Portillo-Quezada shot Andrews at least three times at point-blank range
with an assault rifle. Espino told the police that he then assisted Portillo-Quezada
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in removing Andrews’s body, cleaned the car’s windshield, and then burned the
car. He admitted Portillo-Quezada paid him $1,000 cash and one half-ounce of
methamphetamine for these acts.
Portillo-Quezada and Espino were tried alongside a third co-defendant,
Kenneth W aterbury. W aterbury’s role in the conspiracy was to sell and deliver
drugs. At trial, a key witness, Rieger, testified that Portillo-Quezada admitted
paying Espino $4,000, half of which was in the form of wheel rims, to help kill
Andrews. Rieger also testified that Portillo-Quezada told him that he believed
Andrews w as responsible for the arrest of his brother Raul Portillo on separate
drug charges. Another witness, Stephen Ballard, testified to conversations w ith
Portillo-Q uezada in w hich Portillo-Quezada disclosed a desire to kill Andrews
because he owed Portillo-Quezada money for drugs he had stolen. Ballard
testified to another conversation in which Portillo-Quezada told him that he
“killed that [] Bruce.” Supp Vol. IV at 314.
A jury convicted all three defendants for their role in the conspiracy.
Portillo-Quezada was convicted of: (1) conspiracy to distribute in excess of 500
grams of methamphetamine in violation of 18 U.S.C. § 2 and 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A)(viii); (2) distribution of five or more grams of
methamphetamine in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(viii); (3) possession with intent to distribute five or more grams of
methamphetamine in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and
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842 (b)(1)(B)(viii); and (4) possession of a firearm in furtherance of drug
trafficking in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A).
II. Analysis
Portillo-Quezada claims the district court erred at trial in two ways. First,
he contends the court violated his due process rights when it allowed two co-
defendants to appear before the jury pool in prison clothing. That error was
compounded, he claims, by the prosecutor’s later reference to the way “drug
dealers” look, a thinly veiled comment on the appearance of Portillo-Quezada’s
co-defendants. Second, he argues the district court erred in admitting testimony
connecting the murder of Bruce Andrews to the drug conspiracy. Portillo-
Quezada also claims that the court erred by imposing an unconstitutional sentence
or, in the alterative, a sentence unreasonable under United States v. Booker, 543
U.S. 220 (2005).
W e address each argument in turn.
A. Voir Dire
1. Appearance in Prison Clothing
On the first day of trial, Portillo-Quezada’s co-defendants, Espino and
W aterbury, appeared in the court room in prison clothing apparently because
friends or family had been unable to arrive in time with a clothing change.
Portillo-Quezada wore street clothes. Before voir dire questioning began, the
district court asked the defendants if they were prepared to proceed with voir dire
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given Espino’s and W aterbury’s appearance. Each of the three defendants agreed
to proceed. 1 Sometime during a break in questioning later in the day, Espino
1
The following exchange took place prior to voir dire:
THE COURT: M y next question is to ask whether you’re ready to
proceed to trial. I note that two of the defendants remain in their
prison garb. W hat’s your situation?
M R. DONHAM : Judge, on behalf of M r. W aterbury, his fiancee, M s.
Rush, was supposed to arrive early this morning with a set of clothes.
I attempted to contact her. There was no answer on her cell phone.
M s. Scheurer has contacted her, woke M s. Rush up, so it doesn’t
appear that she’s going to be here on time with clothing.
THE COURT: M r. Dunn?
M R. DUN N: W e’re content to go ahead in jail clothes, but my
client’s mother, when we heard there might be a delay for M r.
W aterbury, rushed back to her place at 2400 Park to try to get some
clothes for Noe [Espino].
THE COURT: M r. Donham, are you prepared to proceed then at this
time?
M R. DONHAM : Yes, sir.
THE COURT: M r. Dunn, so is the defendant Espino?
M R. DUNN: That is correct.
THE COURT: And is the defendant Portillo-Quezada prepared to
proceed?
M R. DEDM ON: Yes, your Honor.
THE COURT: And the government, is it prepared to proceed?
(continued...)
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changed into civilian clothes. W aterbury, however, remained in prison clothing
throughout the voir dire. Before ending voir dire, the court also asked members
of the jury pool whether the defendants’ appearance in prison garb would
prejudice them. The potential jurors assured the court they would be impartial at
trial. Each of the defendants passed the jury for cause.
Since Portillo-Quezada did not object at voir dire, we review for plain
error. United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005).
Plain error exists only when there is (1) error, (2) that was plain, (3) affecting
substantial rights, and (4) going to the fairness, integrity or public reputation of
the judicial proceedings. Id.
“The right to a fair trial is a fundamental liberty secured by the Fourteenth
Amendment.” Estelle v. William s, 425 U.S. 501, 503 (1976). The Constitution
therefore prohibits any courtroom procedure that “undermines the presumption of
innocence and the related fairness of the factfinding process.” Deck v. M issouri,
544 U.S. 622, 630 (2005). It is well-settled that defendants w ho are compelled to
appear before the jury in handcuffs, shackles or prison attire suffer prejudice
1
(...continued)
M S. M cCRACKEN: Yes, sir.
THE COURT: Under those circumstances then let’s call in the prospective
jurors.
Vol. V at 3–4.
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which unconstitutionally undermines the presumption of innocence. In Estelle,
for example, the Supreme Court found due process was compromised by “the
constant reminder of the accused’s condition implicit in such distinctive,
identifiable attire.” 425 U.S. at 504–05. Similarly, in Holbrook v. Flynn, 475
U.S. 560, 569 (1986), the Court found that “prison clothes are unmistakable
indications of the need to separate a defendant from the community at large” and
violate the right to a fair trial. Trial courts must avoid “the sort of inherently
prejudicial practice[s]” that undermine the presumption of innocence by giving
the jury the impression that the defendant is guilty. Id. at 560.
Portillo-Quezada did not wear prison clothing at voir dire or anytime during
trial. He contends, however, he was prejudiced by his association with the co-
defendants who wore prison garb. W e disagree.
First, even if there was error, it was invited by the defendants. The district
court explicitly asked all three defendants if they wanted to proceed with voir dire
despite Espino’s and W aterbury’s appearance. Each defendant acquiesced. A
party cannot induce “action by a court and later seek[] reversal on the ground that
the requested action was error.” United States v. Edward J., 224 F.3d 1216, 1222
(10th Cir. 2000). “‘Having induced the court to rely . . . a party . . . may not at a
later stage . . . use the error to set aside the immediate consequences of the
error.’” United States v. DeBerry, 430 F.3d 1294, 1302 (10th Cir. 2005) (quoting
Fryman v. Fed. Crop Ins. Corp., 936 F.2d 244, 249 (6th Cir. 1991). Portillo-
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Quezada cannot now complain he was prejudiced by an error he invited from the
court.
Second, the Supreme Court has been quite clear that a defendant’s failure
to object to trial proceedings conducted in prison garb “negate[s] the presence of
compulsion necessary to establish a constitutional violation.” Estelle, 425 U.S. at
512–13. In other words, a defendant can be tried in prison clothing if he so
chooses. Here, Portillo-Quezada and his co-defendants chose to proceed with
voir dire despite the court’s implied offer to postpone the proceedings on account
of Espino’s and W aterbury’s appearance. Their choice was entirely voluntary.
Finally, even if the procedure raised concerns of prejudice, the district
court dispelled them. The court polled the jury and created a record showing the
jury was uninfluenced by seeing Espino and W aterbury in prison clothing.
Portillo-Quezada asked no questions of the jury pool about bias arising from the
circumstances or in any way elicited evidence the jury was in fact prejudiced
against him. Any potential prejudice is further attenuated by the fact that
Portillo-Quezada was in civilian clothes, not prison garb, throughout voir dire and
trial.
Accordingly, we find no error in the district court’s decision to go forward
with voir dire upon Portillo-Quezada’s consent.
2. Prosecutor’s Statements
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Also during voir dire, the prosecutor made the following comm ent to the
jury pool:
Finally, many of us have in our minds what the picture of a criminal
is. They have big tattoos and guns and etc., and we expect them to
have long hair, and they wear biker jackets and that kind of thing.
Is anybody sitting there going, if someone doesn’t look-
Vol. V. at 107. Before the prosecutor could finish her comment, Espino’s lawyer
objected, arguing that Espino had visible tattoos and the comments served to
“profile” him as a drug dealer. After W aterbury (who also had tattoos) and
Portillo-Quezada (who had no visible tattoos) joined the objection, the three
moved for a mistrial.
The district court denied these motions but instructed the prosecutor to
make a curative statement. The prosecutor then admonished the potential jurors,
Ladies and gentlemen of the jury, let me just clarify. I am not saying
that drug dealers look a certain way. I’m saying that some people
have perceptions of what criminals look like. I am not saying that
drug dealers have tattoos. I am not saying that drug dealers carry
guns. Absolutely not. M y remarks are not evidence. I am saying
that some people have pictures in their minds of what a criminal
looks like. Because of that they decide that somebody is guilty or not
guilty based on that picture. Does everybody agree they will put
aside the picture in their mind of what a criminal looks like and listen
to the evidence and decide their verdict based on that evidence, not
on some picture that you have of what a crim inal must look like?
Does everybody understand that that’s w hat w e have to focus on? If
not, would you raise your hand?
Id. at 109–10. A fter this admonishment, the district court followed with its own
comments:
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I just w ant to add, mem bers of the jury, that, just as I indicated to
you earlier that the concept of being equal before the eyes of the law
applies to things like nationality or ethnicity, so too does it apply to
appearance. People don’t come before a court and stand trial based
upon how they look or how they behave other than their actions that
are actually charged or proven in a case. So it w ould be wrong, it
would be a violation of your sworn oath as a juror to find somebody
guilty because you didn’t like their looks or because of the w ay they
looked or the way they dressed or their appearance or w hat a
prosecutor told you he or she thought drug dealers looked like, that
sort of thing. Is there anybody that believes that you think that you
would have any difficulty judging this case solely on the evidence
and setting aside appearances, good or bad, that you may perceive
of people and listen and watch behaviors and those kinds of things?
Anybody think you would have difficulty with that?
Id. at 110–11.
Nevertheless, Portillo-Quezada maintains that the district court abused its
discretion by failing to declare a mistrial. W e review the district court’s denial of
his motion for abuse of discretion. United States v. Broomfield, 201 F.3d 1270,
1276 (10th Cir. 2000); United States v. M aynard, 236 F.3d 601, 604 (10th Cir.
2000).
As a preliminary matter, we agree that it is improper for a prosecutor to
appeal to stereotypes based on appearance. The prosecutor referenced a physical
characteristic and appeared to link this characteristic to drug dealers in general.
W hether careless or intentional, these remarks were improper.
Nonetheless, we conclude that the prosecutor’s comm ents did not
unconstitutionally prejudice Portillo-Quezada’s right to a fair trial. In
determ ining w hether prosecutorial misconduct affected the outcome of a trial, w e
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consider three factors within the context of the case as a whole: (1) the curative
acts of the district court, (2) the extent of the misconduct, and (3) the role of the
misconduct. United States v. Gabaldon, 91 F.3d 91, 94 (10th Cir. 1996). None of
the three factors suggest reversible error.
First, the district court acted promptly and forcefully to cure the statement.
It required the prosecutor to rephrase her voir dire statement to remove any false
impression and the court itself provided a strong admonition. The court’s actions,
“closely followed the prosecutor’s improper statements and sufficiently disabused
the jury of any misimpression created by the prosecutor’s inartful [statements].”
United States v. Harlow, 444 F.3d 1255, 1266 (10th Cir. 2006).
In addition, the prosecutor’s statement, which Portillo-Quezada
characterizes as profiling, does not refer to any of his physical characteristics,
attenuating a claim of guilt by association. M ore importantly, after the incident
the prosecutor made no further attempts at trial to capitalize on the remarks or
refer to the defendants’ appearances. It is hard to say that the comment had an
affect on the trial given the substantial evidence of the defendants’ role in the
drug conspiracy. 2
In sum, the prosecutor’s statement, in this context, is not of “sufficient
significance to result in the denial of the defendant’s right to a fair trial.”
2
In any event, the reference was harmless. The evidence presented at trial
of Portillo-Quezada’s culpability was overwhelming.
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M aynard, 236 F.3d at 606 (internal quotations omitted). As we have often
observed, “The Constitution guarantees a defendant a fair trial, not a perfect one.”
United States v. M cHorse, 179 F.3d 889, 904 (10th Cir. 1999). The isolated
remark of the prosecutor during voir dire did not render Portillo-Quezada’s trial
unfair.
B. M urder Evidence
Prior to trial, Portillo-Quezada filed a motion in limine to prevent the
presentation of testimony and evidence regarding the murder of Bruce Andrews.
The motion contended that the evidence of uncharged conduct was inadmissible
under Federal Rule of Evidence 404(b). The district court denied this motion
before trial, holding that the evidence was intrinsic to the conspiracy and,
therefore, not subject to Rule 404(b). The court, however, limited the government
from introducing evidence about the murder beyond the general nature of
Andrews’s killing, and from naming Portillo-Quezada as the gunman. 3 On appeal,
Portillo-Quezada argues that the prosecution violated the court’s order by
introducing evidence beyond its scope, and the graphic nature of the evidence
prejudiced the jury. W e disagree.
Captain John Cosgrove, the Kansas City police officer who interviewed
Espino, testified about Espino’s confession to his role in Andrews’s murder.
3
Based on the trial court’s prior rulings under Bruton v. United States, 391
U.S. 123 (1968) (admissibility of co-conspirator’s confession), the interviewing
officer w as not allowed to name Portillo-Q uezada in his trial testimony.
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Cosgrove’s testimony established the following motives for the murder: (1) to
punish Andrews for failing to pay money owing to the conspiracy, and (2)
revenge for disclosing Raul Portillo’s drug activity to police. Cosgrove testified
that Espino described the killing and the subsequent disposal of the car in which
the crime occurred. Some of the account was graphic— Cosgrove stated that
Espino claimed he cleaned “blood and brains” from the w indshield of the victim’s
car after the murder. Supp. Vol. V at 53.
Portillo-Quezada did not object to Cosgrove’s testimony until after the
government had concluded its direct examination. Although counsel objected that
the testimony exceeded the court’s order in limine, he did not ask for a mistrial at
the time, nor did he move to strike the testimony or suggest a curative instruction.
Portillo-Quezada eventually moved for a mistrial at the close of the government’s
case. The district court denied the motion finding that the evidence was in
context “probably not that shocking [for] this jury to have heard . . . . I do not
believe it in any way undermines the fairness of this trial or unfairly prejudices
those individuals who are alleged to have had some role in murdering M r.
Andrews.” Id. at 69–70.
W e review the district court’s admission of evidence for abuse of
discretion. United States v. Shumway, 112 F.3d 1413, 1419 (10th Cir. 1997). W e
will not reverse a district court’s decision to admit evidence if “it falls within the
bounds of permissible choice in the circumstances” and is not “arbitrary,
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capricious or whimsical.” Id. W e review a district court’s denial of a mistrial for
abuse of discretion. Gabaldon, 91 F.3d at 93–94.
The murder evidence was not barred by Rule 404(b). W hile Rule 404(b)
precludes evidence of “other crimes, wrongs or acts,” it does not apply to
testimony offered as direct evidence of charged crimes. In a conspiracy
prosecution, uncharged acts “committed in furtherance of the charged conspiracy
are themselves part of the act charged.” United States v. Green, 175 F.3d 822,
831 (10th Cir. 1999). Such evidence is “therefore intrinsic [to the crime] and
simply does not implicate the requirements of 404(b).” Id. In sum, conduct
which occurs during the life of a conspiracy and is a part of the same is direct
evidence of the conspiracy and therefore not subject to Rule 404(b). United
States v. Pace, 981 F.2d 1123, 1135 (10th Cir. 1992).
The facts in United States v. Green, supra, help illustrate this point. In
Green, a co-defendant argued against the admission of evidence he threatened a
co-conspirator with a firearm in order to collect missing drug profits. The district
court allowed testimony about the defendant’s use of threats at gunpoint, a strip
search for hidden money, and conversations about a possible murder. W e found
no error, concluding the “evidence of [the defendant’s] attempt to collect missing
profits from [co-conspirators] is intrinsic to the conspiracy charged.” Green, 175
F.3d at 831.
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The murder evidence in this case is admissible for the same reason. The
prosecution presented testimony that Andrews (1) owed Portillo-Quezada money
for drugs stolen from a vehicle belonging to Portillo-Quezada, and (2) revealed to
police the role of Portillo-Quezada’s brother in the conspiracy. The testimony
further showed that Espino served the conspiracy in an “enforcer” role, and that
Portillo-Quezada used monies from the conspiracy to compensate Espino for his
aid in killing Andrews. As in Green, Andrews’s murder was evidence of Portillo-
Quezada’s “attempt to collect missing profits” owing to the conspiracy.
M oreover, the display of force also could serve to intimidate others who might
have considered cheating the conspiracy, again furthering its aims.
Given this testimony, the district court did not abuse its discretion in
admitting the murder evidence as direct proof of the conspiracy and Portillo-
Quezada’s willingness to employ violence to ensure the conspiracy’s success.
See also United States v. M iller, 116 F.3d 641 (2d Cir. 1997) (upholding
admission of evidence of several murders in RICO prosecution of organized
cocaine distribution ring on theory of conspiracy); United States v. Baptiste, 264
F.3d 578 (5th Cir. 2001), amended by 309 F.3d 274 (5th Cir. 2002) (upholding
admission of murder evidence where defendants w ere charged with conspiracy to
distribute crack cocaine).
Portillo-Quezada also argues the evidence was unduly prejudicial. W e test
for unfair prejudice using a balancing test under Federal Rule of Evidence 403.
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See United States v. Tan, 254 F.3d 1204, 1211 (10th Cir. 2001). To be excluded,
evidence must do more than “damage the [d]efendant’s position at trial.” Id. It
must “make[] a conviction more likely because it provokes an emotional response
in the jury or otherwise tends to affect adversely the jury’s attitude toward the
defendant wholly apart from its judgment as to his guilt or [innocence] of the
crime charged.” Id. at 1212. “[E]xclusion of evidence under Rule 403 . . . is an
extraordinary remedy and should be used sparingly.” Id. at 1211. To be a basis
for mistrial, the evidence “must have an undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, an emotional one.” United
States v. M artinez, 938 F.2d 1078, 1082 (10th Cir. 1991) (internal quotations
omitted).
The murder evidence here, while graphic, was not unduly prejudicial. The
district court, in considering this objection, concluded the testimony did not shock
the jury given the evidence Andrews had been shot with an assault rifle at close
range in a car. The court found the reference to the crime scene’s grisly nature
was therefore not surprising to the jury in context, and the murder evidence was
otherwise probative to show the scope of the conspiracy and demonstrated the
lengths to w hich Portillo-Quezada w as w illing to go to protect the conspiracy’s
interests.
In the circumstances here, the district court did not abuse its discretion in
refusing to grant a mistrial.
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C. Sentencing Error
Finally, Portillo-Quezada makes two arguments challenging the life
sentence imposed by the district court. First, he contends the sentence violates
the Ex Post Facto Clause of the Constitution because the district court increased
his sentence under the murder enhancement provision to the United States
Sentencing Guidelines, USSG §§ 2D1.1(d)(1) and 2A1.1. Although the
Guidelines were advisory at the time of sentencing, see United States v. Booker,
543 U.S. 220 (2005), he argues the murder enhancement amounts to retroactive
punishment because the Guidelines were mandatory at the time of his criminal
activity. This argument supposes that he should have been sentenced under a
mandatory Guidelines regime and that the Supreme Court’s decision in Blakely v.
Washington, 542 U.S. 296 (2004) required that murder be charged and proven to a
jury in order for it to enhance a mandatory Guidelines sentence.
He also argues that even if the sentence is constitutional, it is unreasonable
under the factors set forth in 18 U.S.C. § 3553(a). W e disagree with both
arguments.
1. Ex Post Facto and Due Process O bjections
The Ex Post Facto Clause encompasses “[e]very law that changes the
punishment, and inflicts greater punishment, than the law annexed to the crime,
when committed.” Calder v. Bull, 3. U.S. (3 Dall.) 386, 390 (1798). W hile the
prohibition on laws with retroactive effect is generally a “limitation upon the
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powers of the Legislature,” M arks v. United States, 430 U.S. 188, 191 (1977), the
Supreme Court has acknowledged ex post facto limitations on judicial decision
making. Rogers v. Tennessee, 532 U.S. 451 (2001); Bouie v. City of Columbia,
378 U.S. 347, 354 (1964). Limits on ex post facto judicial decisions are based
upon the “core due process concepts of notice, [forseeability], and, in particular
the right to fair warning.” Rogers, 532 U.S. at 451.
Portillo-Quezada’s argument is that retroactive application of Booker
allowed the district court to inflict greater punishment for his conspiracy than it
otherwise could have. This argument is foreclosed by our decision in United
States v. Rines, 419 F.3d 1104 (10th Cir. 2005), in which we concluded that
retroactive application of the advisory Guidelines regime does not violate the ex
post facto component of the Due Process Clause. 4 W e offer a few additional
thoughts pertinent to this case.
At the time Portillo-Quezada engaged in the conspiracy for which he was
convicted the statutory maximum sentence w as life in prison. As it happens, were
Portillo-Quezada sentenced after Blakely, but prior to Booker, the Guidelines
regime in effect at the time may have resulted in a sentence below the statutory
maximum. Nonetheless, the Supreme Court’s decisions in Blakely and Booker did
nothing to alter the statutory maximum sentence, and therefore did not alter
4
W e have consistently rejected similar arguments. See United States v.
Herula, 464 F.3d 1132, 1138 (10th cir. 2006) (quoting Rines).
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Portillo-Quezada’s exposure to punishment. Thus, the sentence imposed in
accordance with Booker does not offend ex post facto principles.
In addition, every other circuit to consider this issue has agreed with us.
See, e.g., United States v. Lata, 415 F.3d 107 (1st Cir. 2005) (rejecting argument
that due process prohibits the retroactive application of Booker on grounds that
the defendants had fair warning of the statutory maximum in the pre-Booker
environment); United States v. Vaughn, 430 F.3d 518 (2d Cir. 2005) (same);
United States v. Scroggins, 411 F.3d 572, 576 (5th Cir. 2005) (rejecting ex post
facto claim to post-Booker sentencing); United States v. Jamison, 416 F.3d 538
(7th Cir. 2005) (rejecting ex post facto claim on reasoning that Booker affects
only punishment, not guilt or innocence); United States v. Wade, 435 F.3d 829
(8th Cir. 2006) (rejecting argument because defendant would have reasonable
expectations of judicial factfinding in pre-Blakely environment when crime was
committed); United States v. Dupas, 417 F.3d 1064 (9th Cir. 2005), amended by
419 F.3d 916 (9th Cir. 2005) (rejecting ex post facto claim on fair warning
grounds); United States v. Duncan, 400 F.3d 1297 (11th Cir. 2005) (holding that
Booker does not act to impermissibly increase the authorized sentence of a
defendant where the defendant’s ultimate exposure did not change); United States
v. Alston-Graves, 435 F.3d 331 (D.C. Cir. 2006) (rejecting argument on grounds
that defendant had fair warning of statutory maximum in pre-Booker
environment).
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W e agree with these cases that where a defendant’s exposure to punishment
has not changed, sentencing under Booker does not amount to ex post facto
judicial decision making in violation of the Due Process Clause.
2. Reasonableness under 18 U.S.C. § 3553(a)
W e review sentences for reasonableness in light of the factors set forth in
18 U.S.C. § 3553(a). United States v. Galarza-Payan, 441 F.3d 885, 887 (10th
Cir. 2006). A properly calculated Guideline sentence is “entitled to a rebuttable
presumption of reasonableness.” United States v. Kristl, 437 F.3d 1050, 1054
(10th Cir. 2006) (per curiam). In evaluating a district court’s calculation of the
applicable Guideline range, we review its factual conclusions for clear error and
its legal conclusions de novo. Id. at 1054.
At his sentencing hearing, Portillo-Quezada was sentenced to life in prison
for conspiracy, 480 months for distribution and possession with intent to
distribute methamphetamine and 60 months for possession of a firearm in
furtherance of a drug trafficking offense. 5 The district court also concluded
Portillo-Quezada was subject to life imprisonment on the basis of the murder
enhancement contained in USSG §§ 2D1.1(d)(1) & 2A1.1. In announcing the
sentence, the court found it would have reached the same sentence on the basis of
5
The firearm sentence w as set to run consecutively to the drug sentences,
which were set to run concurrently.
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the amount of drugs involved and Portillo-Quezada’s leadership role in the
conspiracy. 6
Portillo-Quezada contends his sentence is unreasonable because the court
failed to exercise independent discretion under 18 U.S.C. § 3553(a) by giving
great weight to the now advisory sentencing guidelines. This argument is
foreclosed by our recent decision in United States v. Terrell, 445 F.3d 1261, 1265
(10th Cir. 2006), where we held a district court does not commit error w hen it
gives a “high degree of w eight to the G uidelines in its sentencing decisions.” In
addition, the sentence was w ithin the statutory and Guidelines range and is
therefore presumed to be reasonable. Portillo-Quezada has presented nothing to
suggest the district court committed clear error or otherwise failed to consider the
§ 3553(a) factors.
Accordingly, we conclude that Portillo-Quezada’s sentence is reasonable.
6
Portillo-Quezada also contends the district court erred when it calculated
the amount of drugs attributable to him. W e disagree. As the district court noted
at sentencing, “The drug quantities attributable to a defendant convicted of a
conspiracy are established on the basis of the quantity of drugs which the
defendant reasonably foresaw or which fell within the scope of the defendant’s
agreement with the conspirators.” Vol. V. at 1516 citing United States v. Roberts,
14 F.3d 502, 522 (10th Cir. 1993). In calculating the quantity of drugs which
may be attributed to a defendant, the sentencing court may consider a wide range
of information so long as it bears the “minimum indicia of reliability” to support
its probable accuracy. United States v. Browning, 61 F.3d 752, 755 (10th Cir.
1995). Estimates of drug quantities for w hich a defendant will be held
accountable are acceptable so long as supported by the facts. United States v.
Richards, 27 F.3d 465, 469 (10th Cir. 1994); USSG § 2D1.1, cmt. 12. The
district court explained its estimation of the quantity and purity of
methamphetamine was based on testimony presented at trial.
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III. Conclusion
For the foregoing reasons, we AFFIRM .
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United States v. Portillo-Quezada
Court: Court of Appeals for the Tenth Circuit
Date filed: 2006-11-29
Citations: 469 F.3d 1345
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