UNITED STATES оf America, Plaintiff-Appellee, v. Abadia-Almonte, Defendant-Appellant.
No. 01-2133
United States Court of Appeals, Tenth Circuit.
Oct. 31, 2001.
22 F. App‘x 864
On appeal, Mr. Abadia-Almonte challenges the sufficiency of the evidence to convict him. “[W]e reverse on a sufficiency of the evidence claim only if no rational trier of fact could have found the essentiаl elements of the crime beyond a reasonable doubt.” United States v. Wilson, 244 F.3d 1208, 1219 (10th Cir.) (quotations and citations omitted), cert. denied, --- U.S. ---, 121 S.Ct. 2619, 150 L.Ed.2d 773 (2001). Our review of the record is de novo, and we draw all reasonable inferences in the light most favorable to the government. Id. We do not reevaluate the credibility of witnesses or weigh the evidence presented at trial. Id.
Mr. Abadia-Almonte argues that the elements of the crime were not proven because there was no evidence of physical contact with the victim. He relies on the victim‘s testimony that he did not strike her that night, and on the cross-examination of the prosecution‘s witnesses. Although the witness who saw the couple fighting in the street stated that he did not knоw how many times Mr. Abadia-Almonte swung at her and that it was possible she had tripped, he testified that “[h]is arms would have had to have hit her.” R. Vol. II, at 11. The law enforcement officer who interviewed the couple on the strеet corner stated on cross-examination that he did not know how or when the victim‘s arms became bruised, but he testified that the woman‘s arms were red, as if “she had just gotten slapped or hit.” Id. at 18. The victim admitted that she had refused to have her arms photographed by law enforcement personnel.
The credibility of witnesses and weighing of the evidence presented are squarely within the province of the trial judge. Based оn the eyewitness accounts and inferences reasonably drawn from the evidence, a reasonable trier of fact could have found that Mr. Abadia-Almonte had the requisite physical contact with the viсtim for guilt beyond a reasonable doubt of the misdemeanor crime of assault by striking, beating or wounding. We will not overturn his conviction on appeal.
The judgment of the United States District Court for the District of New Mexico is AFFIRMED.
UNITED STATES of America, Plaintiff-Appellee, v. Hughie CASTER, Defendant-Appellant.
No. 01-8039
United States Court of Appeals, Tenth Circuit.
Oct. 31, 2001.
ORDER AND JUDGMENT*
BRORBY, Senior Circuit Judge.
After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See
Defendant Hughie Caster pleaded guilty to conspiracy to possess methamphetamine with intent to distribute it, a violation of
We review the sentencing court‘s factual findings for clear errоr. United States v. Morales, 108 F.3d 1213, 1225 (10th Cir. 1997). To constitute clear error, we must be convinced that the sentencing court‘s findings are not plausible or permissible in view of the entire record on appeal, remembering that we are not free tо substitute our judgment for that of the district court. Id. Moreover, we view the evidence underlying a sentence in the light most favorable to the district court‘s decision.
See United States v. Conley, 131 F.3d 1387, 1389 (10th Cir.1997).
I. DRUG QUANTITY
Caster first challenges the district court‘s finding that his drug activities aсcounted for more than five kilograms of methamphetamine. The district court‘s drug quantity finding rested largely on the testimony of the probation officer who prepared Caster‘s presentence report. The probation officer‘s testimony in turn largely relied on out-of-court statements by Caster‘s co-conspirators, who told investigators about large amounts of methamphetamine distributed to and by Caster. All tolled, the рrobation officer estimated that 5.05 kilograms of methamphetamine could be attributable to Caster, a conclusion the probation officer stated was based on conservative estimates. Renewing objections he made to the presentence report, Caster questions the credibility of one of his co-conspirators, Zachary Hye, and urges us to exclude altogether several other transactions apart from those involving Hye.
The sentencing court, as the fact finder, has the duty “to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the basic facts to the ultimate facts.” See United States v. Nieto, 60 F.3d 1464, 1469 (10th Cir.1995) (quotation omitted). Credibility determinations are left to its sound discretion. See United States v. Gobey, 12 F.3d 964, 967 (10th Cir.1993). Moreover, the sentencing guidelines authorize the admission of out-of-court statements at a sentеncing hearing, so long as they have “sufficient indicia of reliability to support [their] probable accuracy.”
Here the district court was forced to resolve conflicting accounts about drug quantity and to assess the credibility of Caster and his various co-сonspirators. At his plea hearing, for instance, Caster admitted to distributing only seven pounds of methamphetamine, an amount less than five kilograms. Yet Hye told the probation officer of his almost daily one-ounсe purchases from Caster, purchases that by themselves totaled just short of five kilograms. When these purchases are added to additional transactions between Caster and his other co-conspirаtors, the total figure, according to the testimony of the probation officer, is 5.05 kilograms. Unable to substitute our judgment for that of the sentencing court, and viewing the evidence in a light most favorable to the court‘s dеcision, we cannot say that its drug quantity finding was implausible or clearly erroneous. Hence there was no abuse of discretion.
II. USE OF A MINOR
Caster next objects to the sentence enhancement he received for using a minor to advance his drug sales. The sentencing guidelines prescribe a two-level increase “if the defendant used or attempted to use a person less than eighteen years of age to commit thе offense....”
According to the presentence report, Caster arranged a sale of a quarter pound of methamphetamine between sixteen-
Nonetheless, Caster claims that even if we accept the facts supporting the use-of-a-minor enhancement, they are legally insufficient to constitute the “use” of a minor, since “[n]o money ever exchanged hands.” Aplt.‘s Br. at 14. We disagree.1 The amount of methamphetamine Caster fronted Lopez, more than an ounce, lends itself to the obvious inference not only that Caster believed that the methamphetamine would be sold but also that he would profit from its sale. It was not a gift; it was a business transaction.
III. POSSESSION OF A FIREARM
The final enhancement Caster challenges is the two-level increase he received because “a dangerous weapon ... was possessed” during the drug conspiracy.
Caster was arrested at a friend‘s residence; he had been hiding there to avoid outstanding warrants. The guns were seized from Caster‘s house, discovered in his bedroom along with drug scales, packaging mаterials, and pay/owe sheets. The presentence report and the probation officer who prepared it described the bedroom where the guns were found as a “stash room.” See Presentеnce Report at para. 16. The source of this information, co-conspirator Hye, confirmed that he had seen Caster with the guns. Caster offered nothing to undermine the government‘s evidence. We conclude that the government has met its burden to warrant the gun enhancement.
The judgment of the United States District Court for the District of Wyoming is AFFIRMED.