United States v. Razo, 2015 U.S. App. LEXIS 5264

Background

Mark Razo was convicted by a jury in the District of Maine of conspiracy to traffic methamphetamine (21 U.S.C. §§ 841(a)(1), 846) and three counts of criminal use of a communications facility (21 U.S.C. §§ 843(b), (d)).
At trial a state chemist, Amy Johnson, testified that seized drugs from co-conspirator Blanca Ortiz were pure methamphetamine and compared her results to an in-house known-standard sample obtained from Sigma Chemical Company.
The jury found the conspiracy involved at least 50 grams of pure methamphetamine; the district court sentenced Razo to 300 months (concurrent 48-month sentences on the communications counts).
Razo appealed raising Confrontation Clause objections to Johnson’s testimony about the known standard, sentencing challenges under the Guidelines (leadership enhancement and career-offender status), an Alleyne-related challenge to statutory minima/maxima usage, admission of wiretapped calls, and venue in Maine.
The First Circuit affirmed, holding (1) no Confrontation Clause violation from Johnson’s testimony about the lab reference sample, (2) Guidelines findings (quantity, leadership, five-plus participants, career-offender predicate) were supported, (3) any Alleyne-related error was harmless, and (4) recorded calls and venue findings were proper.

Issues

Issue	Razo's Argument	Government's Argument	Held
Confrontation Clause — testimony about known standard sample	Johnson’s testimony relied on out-of-court laboratory statements about the Sigma standard that were testimonial and inadmissible without cross-examination	Johnson personally tested the seized sample and compared it to a routinely maintained lab reference; statements about the standard were non-testimonial background used prospectively	No Confrontation Clause violation — testimony about the reference sample was non-testimonial and admissible
Leadership enhancement (§3B1.1)	District Court erred finding Razo a leader and that conspiracy involved ≥5 participants	Record showed Razo organized shipments, supervised couriers, and the conspiracy included multiple suppliers/retailers	Finding upheld — facts support leadership role and five-or-more participants
Career-offender classification (§4B1.1)	One prior California vehicle-code conviction (Cal. Veh. Code §2800.4) is not a "crime of violence"	Sykes and subsequent precedent treat vehicular flight statutes as violent felonies/crimes of violence	Upheld — prior conviction qualifies as a crime of violence; sentencing was reasonable and court granted a downward variance
Alleyne / statutory min/max mixing	Court improperly used §841(b)(1)(A) maximum (life) but not its mandatory minimum (requires jury finding) — impermissible mix of statutory ranges	Jury found conspiracy-level quantity (triggering the higher maximum); Alleyne prevents a judge from imposing the aggravated mandatory minimum absent individual-jury finding, so judge applied zero minimum; any error harmless because evidence of individual responsibility for the higher quantity was overwhelming	No reversible error — if any asymmetry existed, it was harmless beyond a reasonable doubt; sentence below any applicable theoretical maximum

Key Cases Cited

Crawford v. Washington, 541 U.S. 36 (Confrontation Clause governs testimonial out-of-court statements)
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (second analyst testimony about forensic tests can raise Confrontation Clause issues)
Bullcoming v. New Mexico, 131 S. Ct. 2705 (analyst’s report admitted through a surrogate can violate Confrontation Clause)
Williams v. Illinois, 132 S. Ct. 2221 (plurality and concurring views on primary-purpose test and testimonial character of forensic statements)
Alleyne v. United States, 133 S. Ct. 2151 (jury must find facts that increase mandatory minimum sentence)
Sykes v. United States, 131 S. Ct. 2267 (vehicular flight statute is a violent felony for ACCA purposes)
United States v. Colón-Solís, 354 F.3d 101 (pre-Alleyne rule on attributing quantity for §841 sentencing)