United States v. Verdin-Garcia

FILED
United States Court of Appeals
Tenth Circuit

February 19, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 06-3354
FIDENCIO VERDIN-GARCIA
and MIGUEL ROMERO,

Defendants-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 05-CR-20017-JWL)

Theodore J. Lickteig, Overland Park, Kansas, for Defendant Appellant Fidencio
Verdin-Garcia; Linda Mary Neal, Overland Park, Kansas, for Defendant-
Appellant Miguel Romero.

Sheri McCracken, Assistant United States Attorney (Eric F. Melgren, United
States Attorney, with her on the brief), Kansas City, Kansas, for Plaintiff-
Appellee.

Before HARTZ, McCONNELL, and HOLMES, Circuit Judges.

McCONNELL, Circuit Judge.
 Fidencio Verdin-Garcia and Miguel Romero were convicted on March 21,

2006, of multiple crimes relating to their leadership of a large marijuana and

methamphetamine trafficking conspiracy located in and around Kansas City,

Kansas. Each was sentenced to serve three concurrent life sentences in prison,

and to other, shorter concurrent sentences. They appeal, and we now affirm.

I. BACKGROUND

We take the evidence from Appellants’ trial, as we must, in the light most

favorable to the government. That evidence showed that Appellants are illegal

immigrants from Nayarit, a western state in Mexico. With a number of family

members they moved to Kansas City, where, as time went by, they abandoned odd

jobs to focus on careers in drug dealing. Specifically, Mr. Verdin-Garcia and Mr.

Romero directed the importation of large quantities of marijuana and

methamphetamine, including “ice,” from California, and they distributed the

drugs principally in Kansas City, Kansas, and Kansas City, Missouri. In

September 2003 the Federal Drug Enforcement Administration (DEA) began an

investigation of Appellants’ California affiliate, the Carra organization. This led

them to Kansas, where in January 2004 they and the Kansas DEA opened an

investigation into the Verdin-Garcia organization.

That investigation lasted approximately ten months. The DEA conducted

extensive surveillance of nine residences in the Kansas City area out of which

elements of the Verdin-Garcia organization operated, and identified over a dozen

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of its members. To gather additional intelligence on the structure and operations

of the conspiracy, the DEA sought and obtained warrants for wiretaps of three

cellular phones used by, among others, Mr. Verdin-Garcia and Mr. Romero.

During the period of August 16 to November 2, 2004, law enforcement agents

intercepted some 3000 telephone calls under these wiretaps, which they used to

piece together many of the specifics of the organization’s drug buys and sales,

money transfers, and internal structure.

On September 29, 2004, co-conspirator Gustavo Castro was arrested with

one pound of methamphetamine. On October 31, co-conspirator Arturo Zuniga

was arrested with four ounces of methamphetamine. The next day, November 1,

police arrested co-conspirators Victor Lemus-Cruz, Juan Carlos Avina, and Jose

Insunza-Flores with half a pound of methamphetamine and two of the wiretapped

phones in their possession. Before police could stop him, Mr. Avina called Mr.

Verdin-Garcia to warn him of the bust. Within hours, police apprehended

Appellants fleeing from Mr. Romero’s home. Searches of the conspirators’

residences turned up scales, a vacuum sealer, money, and additional

methamphetamine packaged for sale.

On February 4, 2005, Appellants were indicted on multiple charges of

conspiracy, possession, and distribution of methamphetamine, and use of a

communications facility to facilitate the commission of a drug felony. Mr.

Romero was also charged with possession of a firearm by a felon, based on a

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9mm handgun found in his home. After a ten-day trial, they were found guilty by

a jury on March 21, 2006. Mr. Verdin-Garcia was convicted on fourteen counts

and Mr. Romero on six. Mr. Verdin-Garcia was subsequently sentenced to three

terms of life imprisonment and eleven terms of four years’ imprisonment. Mr.

Romero was sentenced to three terms of life imprisonment, one of ten years, and

two of four years. They timely appealed.

II. DISCUSSION

Appellants bring three challenges to their convictions. They argue (1) that

the wiretaps carried out during the investigation were invalid and wiretap-

recorded evidence should have been excluded from their trial, (2) that translations

of wiretapped conversations were improper and should have been excluded, and

(3) that Mr. Verdin-Garcia’s telephone calls made from prison after his arrest in

this case were improperly recorded for use as voice exemplars and that derivative

evidence should have been excluded. They also challenge their sentences,

asserting both that they were incorrectly calculated and that the life terms are

unreasonably long.

A. Wiretap Warrants

Federal investigatory wiretaps are governed by Title III of the Omnibus

Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–22. Section 2518

sets forth the requirements for issuance of a wiretap warrant. In particular, the

government must submit a written application to the issuing magistrate laying out,

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among other things, “a full and complete statement as to whether or not other

investigative procedures have been tried and failed or why they reasonably appear

to be unlikely to succeed if tried.” 18 U.S.C. § 2518(1)(c). This provision is

called the “necessity requirement.” See, e.g., United States v. Green, 175 F.3d

822, 828 (10th Cir. 1999). “The purpose of this requirement is to ensure that the

relatively intrusive device of wiretapping is not resorted to in situations where

traditional investigative techniques would suffice to expose the crime.” Id.

(quoting United States v. Edwards, 69 F.3d 419, 429 (10th Cir. 1995)) (internal

quotation marks and further citation omitted). “Traditional investigative

techniques” include surveillance, infiltration or undercover work, questioning of

participants, execution of search warrants, and the use of pen registers and trap-

and-trace devices. See, e.g., United States v. Ramirez, 479 F.3d 1229, 1240 (10th

Cir. 2007); United States v. Ramirez-Encarnacion, 291 F.3d 1219, 1222 n.2 (10th

Cir. 2002). Section 2518 does not, however, mandate exhaustion of all

possibilities; the requirement is “met if the government demonstrates either [that]

normal investigatory techniques have been tried and failed or that they

‘reasonably appear to be unlikely to succeed if tried, or to be too dangerous to

try.’” Ramirez, 479 F.3d at 1240 (quoting United States v. Castillo-Garcia, 117

F.3d 1179, 1187 (10th Cir. 1997)). The necessity requirement is not to be treated

hypertechnically. We expect the government to act “in a common sense fashion,”

and on review we will take in “all the facts and circumstances in order to

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determine whether the government’s showing of necessity is sufficient to justify a

wiretap.” Ramirez-Encarnacion, 291 F.3d at 1222 (internal quotation marks

omitted). The overall burden on the government “is not great.” United States v.

Wilson, 484 F.3d 267, 281 (4th Cir. 2007) (internal quotation marks omitted);

United States v. McLee, 436 F.3d 751, 763 (7th Cir. 2006) (internal quotation

marks omitted); United States v. Armocida, 515 F.2d 29, 38 (3d Cir. 1975).

Once a wiretap has been authorized by a judge, it is presumed proper and

the burden is on the defendant to prove its invalidity. United States v. Radcliff,

331 F.3d 1153, 1160 (10th Cir. 2003). On appeal, therefore, we review de novo

whether “a full and complete statement” was submitted under 18 U.S.C. §

2518(1)(c), and we review for abuse of discretion the conclusion that a wiretap

was necessary. Ramirez-Encarnacion, 291 F.3d at 1222 & n.1.

Three wiretap applications are now at issue: those for target phones (“TP”)

2, 3, and 4. Each application was supported by a lengthy affidavit from DEA

Special Agent Shawn Buck. In this Court, Appellants assert that the government

failed to make a sufficient showing of necessity, because these wiretap

applications did not demonstrate the insufficiency of surveillance, questioning of

witnesses or participants, use of search warrants, or infiltration. After review, we

cannot agree.

As to the insufficiency and limitations of surveillance, the affidavits filed

with the applications are quite thoroughly explanatory. See Aplts’ Br., Vol. II,

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att. 1 (“TP2 Aff.”) ¶¶ 40–53, at 18–23; att. 3 (“TP3 Aff.”) ¶¶ 52–68, at 22–28; att.

5 (“TP4 Aff.”) ¶¶ 54–72, at 23–30. The affidavits describe the fairly extensive

surveillance that was conducted beginning in February 2004. They describe how

the subjects became evasive under surveillance, and note that continued blanket

surveillance would likely compromise the investigation. Furthermore, the

affidavits explain that visual surveillance, however successful, cannot do much to

establish the relationships between the investigation’s subjects, the structure of

their organization, the purposes of meetings, or the sources of their drug supply.

See TP2 Aff. ¶¶ 48, 50, at 21–22; TP3 Aff. ¶¶ 63, 65, at 26–27; TP4 Aff. ¶¶ 67,

69, at 28–29. Appellants argue that the affidavits do not show that surveillance

had failed or had become too dangerous to continue. Indeed, the affidavits clearly

show that surveillance was successful. But it was successful only to a point, and

Appellants have shown no deficiency in the government’s proffered rationale for

needing wiretaps to move to another level.

As to interrogation of subjects, the applications were also sufficient. See

TP2 Aff. ¶¶ 79–84, at 32–34; TP3 Aff. ¶¶ 83–88, at 33–35; TP4 Aff. ¶¶ 87–92, at

35–37. Appellants note that law enforcement apprehended organization members

Francisco Acosta, Octavio Giner, and Brandy Walter, and could have asked them

questions. (Walter was arrested after the TP2 application.) The affidavits spell

out the information learned in interviews with these subjects, but they state,

“[B]ecause such individuals fear for their physical safety, and the safety of their

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family, their own culpability and the timeliness of the information provided, I

believe such interviews would not identify the full scope of the drug trafficking

activities of the Fidencio GARCIA-VERDIN organization. . . . Further interviews

of members of the . . . organization could possibly jeopardize the investigation.”

TP3 Aff. ¶ 87, at 35; TP4 Aff. ¶ 91, at 37; see TP2 Aff. ¶ 83, at 34.

As to use of search warrants, the wiretap applications adequately explained

why they could not be used. Specifically, “large-scale drug trafficking

organizations maintain numerous locations to store their drugs and drug proceeds.

. . . Searches at these locations would alert the TARGET SUBJECTS to the

government’s investigation and cause them to flee the country and/or drastically

change their operations.” TP2 Aff. ¶¶ 54, at 23; TP3 Aff. ¶¶ 69, at 28; TP4 Aff.

¶¶ 73, at 30. It would have been impracticable to bust every relevant location at

once, and doing so piecemeal would have blown the secrecy of the investigation

irrevocably. Furthermore, searches alone “would not lead to the identity of all the

members of the Target Organization nor the full scope of its drug trafficking

activities.” Id.; see generally TP2 Aff. ¶¶ 54–56, at 23–24; TP3 Aff. ¶¶ 69–71, at

28–29; TP4 Aff. ¶¶ 73–75, at 30–31.

Mr. Verdin-Garcia and Mr. Romero also argue that the government should

have infiltrated their organization with moles or undercover agents rather than

obtain wiretaps. But the affidavits explained why infiltration and undercover

work could not reasonably have been expected to succeed: the tight-knit, familial

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Verdin-Garcia organization would be exceedingly unlikely to accept outsiders

into its confidence. See TP2 Aff. ¶¶ 34–39, at 17–18; TP3 Aff. ¶¶ 46–51, at

20–21; TP4 Aff. ¶¶ 48–53, at 21–23.

In considering whether the government acted “in a common sense fashion”

on this issue, we are keenly aware that “[i]nfiltration of a criminal organization is

extremely dangerous and is used sparingly by most law enforcement agencies.”

G REGORY D. L EE , G LOBAL D RUG E NFORCEMENT : P RACTICAL I NVESTIGATIVE

T ECHNIQUES 116 (2004). From the target’s standpoint, the deceptive physical

intrusion of an undercover government agent into his group, seeing and hearing

everything, might be thought indescribably more burdensome than the

eavesdropping of an unnoticed ear upon telephone calls only. And from the

government’s standpoint, whereas wiretapping is carried on from a distance,

undercover work requires direct proximity and interaction between wary criminals

and exposed officers, with weapons often close to hand. Certainly, undercover

work presents an exceedingly grave risk of harm or death to the agent if he is

discovered. And “[t]he most dangerous undercover assignments involve efforts to

infiltrate various elements of the narcotics trade. The largest percentage of

officers who are hurt or killed on duty have been involved in undercover narcotics

operations.” T HEODORE H. B LAU , P SYCHOLOGICAL S ERVICES FOR L AW

E NFORCEMENT 145 (1994 ) (citation omitted). See also D ERRICK P ARKER & M ATT

D IEHL , N OTORIOUS C.O.P.: T HE I NSIDE S TORY OF THE T UPAC , B IGGIE , AND J AM

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M ASTER J AY I NVESTIGATIONS F ROM THE NYPD’ S F IRST “H IP -H OP C OP ” 41 (2006)

(“I knew undercover narcotics work was dangerous. I knew undercover cops had

died in the line of duty. . . . You’re living a fast life that’s not yours, handling

real drugs, and you’ve got to be very convincing—or you could be killed.”).

Applying abuse-of-discretion review to the district court’s conclusion, we

readily agree that the government met its burden of showing both that infiltration

of the close-knit Verdin-Garcia organization would be unlikely to succeed, and

that any attempt would be excessively dangerous.

Appellants’ two remaining arguments are (1) that the government did not

show that it had “paused to reconsider the ordinary investigative measures” before

seeking the wiretaps on TP3 and TP4, Aplts’ Br., Vol. I, at 19, and (2) that the

government should not have attached to the TP2 application two state wiretap

applications relating to the same target individuals. As to the first argument, the

TP3 and TP4 applications each displays new discussion of information learned,

surveillance conducted, and so on, subsequent to the previous wiretap application.

The explanations they provided in toto are still sufficient, and we can see little to

be gained by requiring the government to insert, “We have paused to reconsider,

and still believe . . .” into every paragraph. More importantly, the TP3 and TP4

applications were not occasioned by a desire to expand the scope of the

investigation, but by the fact that the targets were dumping phones and using

multiple phones. Where the government has once demonstrated “sufficient

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necessity to wiretap,” a target cannot “defeat this showing of necessity simply by

changing phone numbers.” United States v. Castillo-Garcia, 117 F.3d 1179, 1196

(10th Cir. 1997), overruled on other grounds by United States v. Ramirez-

Encarnacion, 291 F.3d 1219 (10th Cir. 2002).

As to the last argument, 18 U.S.C. § 2518(1)(e) requires disclosure of “a

full and complete statement of the facts concerning all previous applications” for

wiretaps on the same individuals. Appellants say this information should have

been summarized in Agent Buck’s affidavit, and that the previous applications

should not simply have been attached. We will surely not impose a rule faulting

the government for providing too much information about their investigation.

Although a wiretap application and affidavit must be sufficient in themselves to

meet the demands of § 2518, no authority actively prohibits attaching previous

affidavits, or indeed supplementing the application with any other materials which

may help the magistrate better understand the course of the investigation.

B. Translation of Wiretap Recordings

Appellants argue next that the district court should have held a Daubert

hearing on the admission of translations of intercepted phone calls, and should

have excluded them. At trial, the government offered the testimony of Sara

Gardner, an experienced translator, who had translated some 3000 wiretap-

recorded phone calls from Spanish to English for the government. The recordings

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themselves were admitted as substantive evidence; the translations were shown to

the jury for demonstrative purposes only.

The government had asked Ms. Garner, in translating ambiguous words, to

provide all possible meanings so that the jury could decide for itself in each case

what was meant. In this appeal, Appellants quarrel with her alternative

interpretation of the recurring Spanish word jale as “work, gig, job, [or] dope.”

E.g., Aplee’s App. Vol. I, exh. 155, at 4; Vol. II, exh. 235; Vol. III, exh. 440, at

1; Vol. IV, exh. 665. (It could also mean “snort [of cocaine],” but Ms. Gardner

omitted that possibility at the government’s request because it might be

objectionable as overly prejudicial. Appellants brought it out on cross, however.)

Appellants argue that providing the possible meaning “dope” was not translation

but rather code-language interpretation, for which they say Ms. Gardner was not

qualified. However, they did not cross-examine Ms. Gardner on the word jale, or

call their own translator.

A translator may “provide nonliteral translation” of “slang terms or idioms

which are widely used and understood by the native speakers of the foreign

language.” United States v. Gonzalez, 365 F.3d 656, 660 (8th Cir. 2004), vacated

and remanded on other grounds, 543 U.S. 1107 (2005), previous opinion adopted

in relevant part, 188 F. App’x 547, 548 n.2 (8th Cir. 2006). Terms like “420”

and “714s,” for instance, do not require decoding or code-cracking to understand;

it may take nothing but street savvy to know that they refer to marijuana usage

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and Quaaludes. Once foundation is laid that a translator has that savvy, her

translation of drug slang is no more a matter of opinion than her translation of any

other slang or idiomatic usage. Differences of opinion on the proper meaning or

translation of a slang term are to be resolved—as with other disputes concerning

translation—through cross-examination or by the presentation of another qualified

translator with a contrary view.

In this case, Ms. Gardner testified that she was familiar with the Nayarit

region of Mexico and with its slang, that she had received training on the slang

terms of the various regions of Mexico, and that she had interpreted in numerous

conversations involving natives of Nayarit. She testified specifically, “Well, for

the word jale, I have heard Mexicans use that term in the drug culture, based on

the many interpreting jobs I’ve done, that they use that to refer to dope, drugs in

general.” R., Vol. V, at 529. She also testified that, in selecting the possible

meanings she provided for the term jale, she relied on a variety of resources

including books and the assistance and expertise of other interpreters. She agreed

that the rendition “work, gig, job, [or] dope” was “based on all [her] training and

experience as to what that slang term could mean.” Id. at 534.

Accordingly, the evidence established that the term jale was not code, but

slang within the drug subculture of the defendants’ region of origin. Ms.

Gardner’s training and experience provided her with the ability to understand, and

therefore to translate, the term.

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 C. Interception of Prison Phone Calls

Appellants were held prior to trial at a Correctional Corp. of America

(“CCA”) facility in Leavenworth, Kansas. Because they had refused to cooperate

in providing voluntary voice exemplars as ordered by the district court, the

government recorded calls they made on prison telephones. These recordings

were then used as exemplars by a case agent to identify the speakers in the calls

that had been recorded during the investigation. Mr. Verdin-Garcia moved to

suppress the use of these prison recordings under Title III of the Wiretap Act.

Mr. Romero did not join the motion and appears not otherwise to have preserved

the issue. 1

On appeal, the issue is whether the prison recordings fall within the “prior

consent” exception to the Wiretap Act. Under this provision, it is lawful “for a

person acting under color of law to intercept a wire, oral, or electronic

communication, where . . . one of the parties to the communication has given

prior consent to such interception.” 18 U.S.C. § 2511(2)(c). The government

argues that Mr. Verdin-Garcia’s consent can be implied from his decision to use

the prison telephone despite adequate warnings that doing so would subject his

communications to monitoring. We agree.

1
Mr. Romero did file a pro se motion to suppress “any and all evidence in
the case at bar.” Dist. Dkt. Doc. 130, at 1. The motion did not otherwise specify
what evidence was meant or offer any reason why it should be suppressed. This
is insufficient to preserve the issue for Mr. Romero.

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 CCA employee Richard Shanks testified that prominent signs next to the

telephones at the prison proclaimed, “All calls may be recorded/monitored,” in

both English and Spanish. R., Vol. IV, at 317–18. He also testified that new

inmates at the facility, including specifically Mr. Verdin-Garcia, undergo

orientation and receive handbooks in their choice of English or Spanish, and that

those handbooks state that all calls may be monitored. Id. at 319–22, 324–25.

Officer Norma Lorenzo, the agent who used the recorded exemplars to conduct

voice identifications, testified that when a CCA inmate places a phone call, a

recorded message prompts the caller to select English or Spanish, and then

informs the caller in the language of his choice that all calls are subject to being

monitored and recorded. This was the case, she stated, on every one of the

recorded calls which she used as voice exemplars.

In this appeal, Mr. Verdin-Garcia hangs his hat on two arguments: that

“subject to being recorded” is not the same as “will be recorded,” so his use of

the telephone with knowledge of the former was not really implied consent to the

latter; and in the alternative that express consent to being recorded, not implied

consent, is required under the Wiretap Act. The first argument is unpersuasive.

There is no evidence that all calls made by CCA inmates were recorded, and we

can see no reason to require that prison officials either record all calls or lie to the

inmates that they are doing so.

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 Nor is the prisoner’s express consent necessary; implied consent will

satisfy the statute. We note that by this term we mean actual consent inferred

from circumstances other than an express declaration, and not constructive

consent implied by operation of law. See United States v. Corona-Chavez, 328

F.3d 974, 978–79 (8th Cir. 2003); Williams v. Poulos, 11 F.3d 271, 281 (1st Cir.

1993). A prisoner’s voluntarily made choice—even a Hobson’s choice—to use a

telephone he knows may be monitored implies his consent to be monitored. Thus

we stated in United States v. Faulkner, 439 F.3d 1221, 1225 (10th Cir. 2006), that

“we have no hesitation in concluding that a prisoner’s knowing choice to use a

monitored phone is a legitimate ‘consent’ under the Wiretap Act.”

Mr. Verdin-Garcia argues on appeal that consent cannot be inferred from

circumstances. We have already held that it can, however, where awareness and a

voluntary choice are present. The real issue in this case is whether awareness can

be inferred from circumstances. Like the prisoner in Faulkner, Mr. Verdin-Garcia

did not express consent to the monitoring. Unlike the prisoner in Faulkner,

however, Mr. Verdin-Garcia did not expressly acknowledge his awareness of the

monitoring. We hold that such an expression is not necessary.

A number of decisions from other circuits applying Title III’s consent

requirement confirm our view. In United States v. Horr, 963 F.2d 1124, 1126

(8th Cir. 1992), the Eighth Circuit found implied consent to record where an

inmate had received a guidebook, and signs were posted, stating, “The Bureau of

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Prisons has the authority to monitor conversations on this telephone. Your use of

the institutional telephone constitutes consent to this monitoring.” See also

Corona-Chavez, 328 F.3d at 978 (“When someone voluntarily participates in a

telephone conversation knowing that the call is being intercepted, this conduct

supports a finding of implied consent to the interception.”). Several Second

Circuit decisions have also found implied consent where warnings were given,

even without “constitutes consent” language in those warnings. United States v.

Workman, 80 F.3d 688, 693–94 (2d Cir. 1996) (implied consent where inmate

guidebook and signs near telephones stated calls were subject to monitoring);

United States v. Amen, 831 F.2d 373, 378–79 (2d Cir. 1996) (implied consent

where prison regulations, orientation lecture, and inmate guidebook stated calls

were subject to monitoring). Use of the prison telephone is a privilege, not a

right, and we agree with the other circuits having considered the question that

where the warnings given and other circumstances establish the prisoner’s

awareness of the possibility of monitoring or recording, his decision to take

advantage of that privilege implies consent to the conditions placed upon it.

D. Sentencing

Finally, Appellants challenge their sentences. They assert that their

sentences were incorrectly calculated because they were held responsible for

excessive drug amounts; they charge that the sentencing judge failed to consider

several of the factors of sentencing set forth in 18 U.S.C. § 3553(a); and they

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claim that the sentences imposed were substantively unreasonable. The

arguments do not persuade.

After United States v. Booker, 543 U.S. 220, 262 (2005), we review

sentences for “reasonableness.” Reasonableness review is a two-step process

comprising a procedural and a substantive component. Gall v. United States, 128

S. Ct. 586, 597 (2007). The former inquiry is whether the sentencing court

committed any “significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id.

The substantive reasonableness inquiry “involves whether the length of the

sentence is reasonable given all the circumstances of the case in light of the

factors set forth in 18 U.S.C. § 3553(a).” United States v. Conlan, 500 F.3d 1167,

1169 (10th Cir. 2007).

1. Procedural Reasonableness

Mr. Romero raises several objections to the inclusion of eight particular

quantities of narcotics as relevant conduct in determining his offense level. 2 The

2
Although Mr. Verdin-Garcia and Mr. Romero filed a joint brief in this
appeal, the arguments relating to calculation of drug amounts refer only to Mr.
Romero’s PSR, and mention only Mr. Romero’s objections thereto. We therefore
consider Mr. Verdin-Garcia not to have raised these arguments on appeal. Were
we to examine these issues with respect to Mr. Verdin-Garcia, however, the same
facts and logic would lead us to affirm.

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government’s addendum to Mr. Romero’s Presentence Investigation Report (PSR)

mentions, for instance, a telephone call in which Eduardo “Tres Pelos” Lopez

orders twelve pounds of methamphetamine from Mr. Verdin-Garcia, and the

testimony of Arturo Zuniga that he repeatedly purchased 2- to 4-ounce quantities

of “ice” methamphetamine from the defendants. With respect to these and other

quantities, Mr. Romero argues (1) that none of the substances alluded to was ever

seized and tested in a laboratory; (2) that the use of the term “ice” in testimony

was only colloquial and should not be taken as establishing that the narcotics

mentioned were actually “ice” methamphetamine, i.e. at least 80% pure, for

purposes of calculations under the Sentencing Guidelines (one gram of “ice” is

punished as ten grams of standard methamphetamine); and (3) that transactions

carried on by Mr. Verdin-Garcia should not be attributed to Mr. Romero, because

the evidence did not sufficiently show the relationship between them. Last, both

appellants argue that the district court committed error by failing to consider all

the sentencing factors enumerated in 18 U.S.C. § 3553(a).

Narcotics need not be seized or tested to be held against a defendant at

sentencing. “‘When the actual drugs underlying a drug quantity determination are

not seized, the trial court may rely upon an estimate to establish the defendant's

guideline offense level so long as the information relied upon has some basis of

support in the facts of the particular case and bears sufficient indicia of

reliability.’” United States v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005)

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(quoting United States v. Ruiz-Castro, 92 F.3d 1519, 1534 (10th Cir. 1996))

(further quotation omitted); see U.S.S.G. § 2D1.1 cmt. 12 (“Where there is no

drug seizure . . . the court shall approximate the quantity of the controlled

substance.”). Laboratory test results are perhaps more persuasive evidence of

amounts and purities than eyewitness testimony or wiretapped conversations, but

they are not unreliable as a matter of law. The issue is whether an amount or

purity is established by a preponderance of the total sum of the evidence. With

the two exceptions mentioned next, Mr. Romero does not argue on appeal the

insufficiency of the evidence to support the drug quantities at issue. The claim he

appears to make, that the absence of seizure or testing makes a drug quantity per

se unreliable, fails.

For calculations under the Sentencing Guidelines where several different

drugs are involved, drugs other than marijuana are convertible into “marijuana

equivalents” so that apples may be added to apples to determine an offense level.

Under the Guidelines, 1 gram of methamphetamine mixture is equivalent to 2

kilograms of marijuana, while 1 gram of “ice” or 1 gram of methamphetamine

(actual) is equivalent to 20 kilograms of marijuana. U.S.S.G. § 2D1.1, cmt. 10

(2006). “Ice” is a methamphetamine mixture of at least 80% purity (at least 80%

d-methamphetamine hydrochloride and no more than 20% cutting agent), and

methamphetamine (actual) means the actual weight of the pure d-

methamphetamine hydrochloride in a mixture. Id., § 2D1.1(c) nn.B, C.

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 To simplify our analysis, we observe that any amount of narcotics over

30,000 kilograms of marijuana equivalents is superfluous for Guidelines purposes,

because 30,000 yields the maximum possible base offense level, 38. Id., §

2D1.1(c)(1). Here, Mr. Romero does not object to the inclusion of 14,753

kilograms of marijuana equivalents in determining his base offense level. Thus

the dispute is really over the existence of enough narcotics to make up the 15,247

kilograms necessary to reach the 30,000 barrier. That amount is equivalent to

762.35 grams of “ice” or methamphetamine (actual), which is only 1.6807

pounds.

The eight quantities to which Mr. Romero objects include 5443 grams of

methamphetamine mixture and 5 pounds, 6.5 ounces (2452.2 grams) of alleged

“ice.” It does not matter, despite Mr. Romero’s arguments, whether this latter

quantity meets the legal definition, 80% purity, of “ice.” If it were of even a

scant 33% purity, it would contain 809.2 grams of methamphetamine (actual) and

so would be enough by itself to push Mr. Romero past the 30,000 kilogram

barrier. And if one includes the other 5443.2 grams of methamphetamine

mixture, one can forget purity altogether. For if the 2452.2 grams at issue were

not true “ice” they were, at minimum, methamphetamine mixture, and the total is

then 7895.4 grams of methamphetamine mixture, which is equivalent to 15,790.8

kilograms of marijuana—also enough to tip Mr. Romero over the brink. We

therefore need not reach at all the question whether the evidence was sufficient to

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prove by a preponderance that the disputed narcotics alleged to be “ice” were in

fact 80% pure.

The next issue is whether the evidence was sufficient to support holding

Mr. Romero responsible for drug amounts with which only Mr. Verdin-Garcia

was directly involved. In this case, the indictment charged that the two, among

others, “did knowingly, and unlawfully combine, conspire, and agree with each

other . . . to distribute and possess with intent to distribute” methamphetamine

and marijuana. R., Vol. I, doc. 1, at 1–2. Both were convicted. On this issue,

Mr. Romero disputes only that he and Mr. Verdin-Garcia “were equal partners in

everything,” Aplts’ Br., Vol. I, at 41, but he does not challenge the sufficiency of

the evidence to support his conspiracy conviction. Since the conviction stands,

we must accept that these defendants combined and conspired to distribute

methamphetamine and marijuana.

A defendant convicted of conspiracy may properly be held responsible for

all conduct of co-conspirators that was in furtherance of the conspiracy and was

reasonably foreseeable in connection therewith. United States v. Dazey, 403 F.3d

1147, 1173 n.3 (10th Cir. 2005). “For a conspiracy is a partnership in crime; and

an ‘overt act of one partner may be the act of all without any new agreement

specifically directed to that act.’” United States v. Socony-Vacuum Oil Co., 310

U.S. 150, 253–54 (1940) (quoting United States v. Kissel, 218 U.S. 601, 608

(1910)). Accordingly “[i]t is well established that, upon his conviction of

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conspiracy to possess with intent to distribute [narcotics, a defendant is]

accountable for that drug quantity which was within the scope of the agreement

and reasonably foreseeable to him.” United States v. Hernandez, 509 F.3d 1290,

1298 (10th Cir. 2007) (internal brackets and quotation marks omitted); accord

United States v. Topete-Plascencia, 351 F.3d 454, 459 (10th Cir. 2003); see

U.S.S.G. § 1B1.3(a)(1)(B).

Even if it were true that Mr. Romero was not an “equal partner” with Mr.

Verdin-Garcia in this conspiracy, that would not lessen his accountability for the

drug quantities involved. The issue is whether Mr. Verdin-Garcia’s drug

transactions were carried out within the scope of the conspiracy and foreseeably

to Mr. Romero. Mr. Romero does not argue that they were not.

Last, Appellants both argue that the district court committed procedural

error because it did not expressly mention several of the factors listed as

sentencing considerations in 18 U.S.C. § 3553(a). However, the Supreme Court

has recently clarified that, although some explanation of a judge’s sentencing

decision is required, “when a judge decides simply to apply the Guidelines to a

particular case, doing so will not necessarily require lengthy explanation.” Rita v.

United States, 127 S. Ct. 2456, 2468 (2007). As we made clear in United States

v. Rines, 419 F.3d 1104 (10th Cir. 2005), a district court need not “march through

§ 3553(a)’s sentencing factors,” nor do we “demand that the district court recite

any magic words to show that it fulfilled its responsibility to be mindful of the

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factors that Congress has instructed it to consider.” Id. at 1107; see also United

States v. Ruiz-Terrazas, 477 F.3d 1196, 1202 (10th Cir. 2007) (“[A] specific

discussion of Section 3553(a) factors is not required for sentences falling within

the ranges suggested by the Guidelines.”); United States v. Lopez-Flores, 444

F.3d 1218, 1222 (10th Cir. 2006) (collecting cases). Thus it is not enough to say,

as Appellants do here, that the court failed for instance to “discuss the need to

avoid unwarranted sentence disparities among defendants with similar records

who have been found guilty or [sic] similar conduct.” Aplts’ Br., Vol. I, at 47.

Appellants must have raised a nonfrivolous argument below showing, by more

than hand-waving or conclusory statements, the likelihood of a sentencing

disparity if the Guidelines were followed. This they did not do.

2. Substantive Reasonableness

Finally, Appellants charge that the life sentences imposed in this case were

greater than necessary to comply with the purposes of sentencing. Our review of

the substantive reasonableness of a sentence is limited to determining whether the

sentencing judge abused his discretion. See Rita, 127 S. Ct. at 2465; United

States v. Angel-Guzman, 506 F.3d 1007, 1014–15 (10th Cir. 2007). A sentence

within the correctly calculated Guidelines range is presumed to be reasonable,

United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006); the burden is on the

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appellant to rebut the presumption. 3 That burden is a hefty one, because abuse-

of-discretion is a deferential standard of review. See Gall, 128 S. Ct. at 591;

Angel-Guzman, 506 F.3d at 1015.

At Appellants’ joint sentencing hearing, the district judge explained at

length why he believed life sentences to be appropriate. He observed,

The seriousness of this offense is underscored by the tremendous
quantity of drugs that are involved here. I really haven’t attempted
to engage in a comparative analysis of trials and/or other cases that I
have had contact with over almost 15 years of doing this job, but this
certainly is one of the most significant quantities of drugs that I have
seen involved in a prosecution.

R., Vol. X, at 2279–80. He also addressed Mr. Verdin-Garcia and Mr. Romero

individually. An extensive retelling of the judge’s findings and rationale is

unnecessary, but in brief he laid out how this conspiracy used young family

members for drug work and how Appellants had possessed firearms in connection

with their trafficking. Id. at 2280, 2307. The judge stated that Mr. Verdin-Garcia

had shown “absolutely no respect for the law at any stage,” had “absolutely no

redeeming qualities,” displayed an “absolute lack of remorse,” and had appeared

bored at his own trial, id. at 2280–81, and noted that “his status as an illegal

immigrant demonstrates a separate example of his disregard for the laws of this

3
Appellants argue that we should overrule Kristl and refuse to apply a
presumption of reasonableness to within-Guidelines sentences. One panel of this
court may not overrule another. Moreover, Rita, handed down after Appellants’
brief was submitted, confirms that this presumption is permissible. See Rita, 127
S. Ct at 2466–67.

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country,” id. at 2283. Mr. Verdin-Garcia had, the judge said, “demonstrated that

he is a person who will engage in criminal conduct as long as he has the

opportunity to do so.” Id. at 2281. As to Mr. Romero, after considering his

conduct and observing his actions the judge stated, “It’s apparent to me that Mr.

Romero does not have any respect for the law.” Id. at 2308. Mr. Romero

displayed a “lack of remorse,” and had a “propensity to reoffend and come back

into this country after his prior conviction” and deportation for drug trafficking.

Id. The judge reiterated as well the magnitude of Mr. Romero’s crimes. Id. at

2306–07. In light of these explanations, we cannot find the sentences an abuse of

discretion.

Mr. Verdin-Garcia argues that sentencing disparity among co-defendants

requires a lower sentence. 4 His co-defendants Graciela Reynoso and Maria

Verdin received respective sentences of 14 and 48 months. But Ms. Reynoso, the

defendant’s wife, pleaded guilty to one count of misprision of felony, and Ms.

Verdin, his sister, to one count of use of a communication facility to facilitate the

commission of a drug felony. See Dist. Dkt. Docs. 183, 186. These were Class E

felonies. By contrast, Mr. Verdin-Garcia was convicted of one count of

conspiracy and two counts of distribution of methamphetamine, Class A felonies,

plus eleven counts of the Class E felony of using a communication facility. R.,

Vol. II, doc. 214. The evidence bountifully established that Mr. Verdin-Garcia

4
Only he raised this argument below. See R., Vol. II, doc. 201, at 3.

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was the kingpin, or one of two, of the Kansas City branch of this conspiracy, that

he was responsible for distributing very large amounts of drugs, and that he was

using his own family members to carry out his plans. We would likely reverse if

his sentence were not disparate from theirs.

Moreover, even if sentencing disparities among co-defendants may be

considered by district courts in the exercise of their sentencing discretion, see

Gall, 128 S. Ct. at 599–600, 18 U.S.C. § 3553(a)(6) requires a judge to take into

account only disparities nationwide among defendants with similar records and

Guideline calculations. See United States v. Davis, 437 F.3d 989, 997 (10th Cir.

2006); United States v. Gallegos, 129 F.3d 1140, 1143 (10th Cir. 1997). It is not

reversible error for a sentencing court to adhere to this interpretation in its

exercise of sentencing discretion.

Accordingly, “tak[ing] into account the totality of the circumstances,” Gall,

128 S. Ct. at 597, we are satisfied that the life sentences of both appellants are

reasonable.

III. CONCLUSION

For the reasons stated above, we AFFIRM the judgment of conviction and

sentence as to both appellants, Fidencio Verdin-Garcia and Miguel Romero.

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