Unitеd States of America v. Chase Logan Guzman; United States of America v. Justin Thomas Morales, also known as Speedy
No. 18-1506; No. 18-2202
United States Court of Appeals For the Eighth Circuit
June 13, 2019
Submitted: February 13, 2019; Appeals from United States District Court for the District of South Dakota - Sioux Falls
Submitted: February 13, 2019
Filed: June 13, 2019
Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
As part of an investigation of large-scale methamphetamine trafficking, law enforcement officers pulled over Justin Morales and Chase Guzman in a traffic stop and found a pound of marijuana and a firearm on Guzman. Officers obtained a search warrant and subsequently found more marijuana and two pounds of methamphetamine inside a home connected to the trafficking. Morales and Guzman wеre indicted on one count of conspiracy to distribute methamphetamine, and Guzman was indicted on one count of using or carrying a firearm during and in relation to a drug trafficking crime. After the district court1 denied their respective motions to suppress evidence, Guzman conditionally pleaded guilty to both counts and Morales proceeded to trial where the jury found him guilty. Defendants separately appeal the district court‘s denial of their motions to suppress and raise various sentencing and evidentiary issues. We consolidated the appeals, and for the reasons explained bеlow, we affirm.
I
At the suppression hearing, various law enforcement officers testified to the following facts. In March 2016, a confidential informant (CI) told agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) that Morales would be trafficking firearms and large quantities of methamphetamine from Wichita, Kansas, to Sioux Falls, South Dakota, and the surrounding area. According to the CI,
Over the next several months, ATF agents amassed evidence of Morales‘s methamphetamine trafficking. The agents recorded more than forty phone calls between the CI and Morales discussing methamphetamine “buys.” Some of these purchases came to fruition. In April 2016, for instance, ATF agents arranged for the CI to conduct a controlled buy of approximately four ounces of methamphetamine from Morales in exchange for $5,000.
In the early morning hours of September 22, 2016, the CI contacted Warkenthien with information that would lead to Morales‘s and Guzman‘s arrests later that day. The CI told Warkenthien that Morales and Guzman had arrived in Sioux Falls from Wichita to sell methаmphetamine and marijuana. The CI relayed that Morales and Guzman were staying at the Days Inn hotel in Sioux Falls and that the CI planned to meet with Morales that morning to discuss the CI‘s involvement in the drug trafficking. Fair drove to the Days Inn to set up surveillance.
As anticipated, the CI spent a large part of the morning meeting with Morales and Guzman at the Days Inn and some area businesses. The CI recorded many of the group‘s conversations. In one of these conversations, Morales told the CI that he was storing two pounds of methamphetamine and three pounds of marijuana at the home of Jerri Young Running Crane in
While stationed at the Days Inn parking lot that morning, Fair observed two people get out of a Kansas-plated minivan registered to Jacqueline Morales and get into the CI‘s vehicle. Fair personally identified one of the individuals as Justin Morales based on photos that he had seen previously. Other agents also stationed at the hotel identified the other individual as Guzman and communicated that information via radio to the rest of the investigation team. Morales, Guzman, and the CI left thе Days Inn parking lot but returned sometime later, still in the CI‘s vehicle. All three individuals exited the CI‘s vehicle and accessed a Kansas-plated pickup truck registered to Guzman. Agents then saw Morales and Guzman get into the minivan and drive off.
Guzman and Morales drove to Young Running Crane‘s home, where agents had also set up surveillance. An agent positively identified Morales and Guzman getting out of the minivan and entering the home. Some time later, Sioux Falls Narcotics Detective Adam Buiter observed Morales and Guzman—both of whom he identified based on pictures he had previously seen—exit the home and get into the minivan once more. Buiter relayed this information to the rest of the investigation team.
The minivan left Young Running Crane‘s home, and several members of the surveillance team followed in unmarked cars. The minivan‘s “circuitous” driving around area businesses made the agents concerned that their surveillance had been, or soon would be, detected. So they decided to enlist the assistance of the South Dakota Highway Patrol to conduct a “ruse” stop of the vehicle in a marked patrol car based on the evidence of drugs and firearms they had already collected that day. The intent of such a stop is to maintain the appearance of an everyday traffic stop so as to not alert subjects of a narcotics investigation that they may soon be arrested, and to minimize dangers that may arise when armed suspects are stopped by unmarked law enforcement vehicles.
Detective Dan Christiansen, who was part of the surveillance team, contacted State Trooper Andrew Steen to assist with the stop. Christiansen told Steen that the minivan‘s occupants possessed drugs and firearms. Steen was instructed that he did not have wait to develop his own probable cause for a traffic violation before stopping the minivan but that he should make the stop look routine.
Steen stopped the minivan, and Sioux Falls Police Officer Jason Christensen arrived to provide assistance. Steen approached the driver‘s side and Christensen approached the passenger‘s side. Steen falsely told Morales, who was driving, that his brake light was out and asked him to step out of the vehicle. For his part, Christensen asked Guzman, who was sitting in the passenger seat, also to exit. When Guzman obliged, Christensen saw a small plastic bag containing marijuana between the passenger seat and the doorsill. The offiсers placed Morales and Guzman in handcuffs. Steen and Christensen searched the minivan and found a pound of marijuana, various cell phones, cash, and a small digital scale that tested positive for methamphetamine. Searches of Guzman‘s person revealed a loaded Glock 19, approximately 29 grams of methamphetamine, and drug paraphernalia.
Based on this evidence, Warkenthien obtained a search warrant for, among other things, Young Running Crane‘s home and the Kansas-plated pickup truck registered to Guzman. A search of the home produced two pounds of marijuаna and two pounds
A superseding indictment charged Guzman and Morales with one count of conspiracy to distribute 500 grams or more of methamphetamine, in violation of
On appeal, both defendants challenge the district court‘s denial of their respective motions to suppress and raise various sentencing issues. Morales also challenges one of the district court‘s pretriаl evidentiary rulings. We address the district court‘s denial of the motions to suppress first, followed by Guzman‘s sentencing challenge and Morales‘s evidentiary and sentencing arguments.
II
“We review the denial of a motion to suppress de novo but the underlying factual determinations for clear error, giving due weight to inferences drawn by law enforcement officials.” United States v. Walker, 840 F.3d 477, 483 (8th Cir. 2016) (quoting United States v. Hurd, 785 F.3d 311, 314 (8th Cir. 2015)). “To conclude that findings of fact are clearly erroneous, the court‘s review of the record should leave a definite and firm conviction that a mistake has been made,” and “the appellate court should give particular deference to findings based upon credibility determinations.” Prince v. Sargent, 960 F.2d 720, 720–21 (8th Cir. 1992) (per curiam). We will affirm thе denial of a motion to suppress unless the decision “is unsupported by substantial evidence, is based on an erroneous interpretation of the law, or it is clear, based on the entire record, that a mistake was made.” Walker, 840 F.3d at 483.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
Morales and Guzman argue that Steen‘s stop of the minivan violated their Fourth Amendment rights and that all evidence obtained as a result of that stop must be suppressed as fruit of the poisonous tree. They contend that they were not specifically identified as the occupants of thе van before the stop, depriving Steen of reasonable suspicion to believe the minivan‘s occupants were engaged in criminal activity. The district court found that before agents directed Steen to stop the minivan, they had “positive[ly] identifi[ed] that the occupants of the grey van were in fact [Morales] and [Guzman].” This finding of fact is amply supported by the record.
Fair‘s and Buiter‘s testimony at the suppression hearing established that agents identified Morales and Guzman at various points throughout the day and specifically
In essence, Morales and Guzman ask us on appeаl to disbelieve the agents’ testimony, but as we have stated many times, “[a] credibility determination made by a district court after a hearing on the merits of a motion to suppress is ‘virtually unassailable on appeal.‘” United States v. Frencher, 503 F.3d 701, 701 (8th Cir. 2007) (quoting United States v. Guel-Contreras, 468 F.3d 517, 521 (8th Cir. 2006)). Accordingly, the district court did not clearly err in finding that law enforcement officers knew that Morales and Guzman were inside the minivan before it was stopped.2 We therefore affirm the district court‘s denial of each defendant‘s motion to suppress.
III
Guzman‘s advisory range under the U.S. Sentencing Guidelines was 135 to 168 months’ imprisonment for the drug offense, subject to a 120-month statutory mandatory minimum. His firearms offense subjeсted him to an additional mandatory minimum sentence of 60 months’ imprisonment, to be served consecutively as required by statute.3 At sentencing, Guzman urged the district court to apply the “rationale” of Dean v. United States, 137 S. Ct. 1170 (2017), to vary below the 120-month mandatory minimum sentence on the drug offense by taking into account that he must additionally serve the 60-month sentence for the firearms offense. The
district court rejected Guzman‘s argument but varied downward to the statutory minimum on the drug offense and imposed a total sentence of 180 months.
On appeal, Guzman argues that the district court misinterpreted Dean in concluding that the court lacked the authority to vаry below the statutory minimum on the drug offense. The government counters that Guzman‘s challenge is barred by the
Courts seem to disagree on whether the government forfeits its right to enforce an appeal waiver if it fails to object before the district court to a defendant‘s intent to appeal or the district court‘s advisement that the defendant retains the right to appeal. Compare United States v. Alford, 147 F. App‘x 45, 49 (10th Cir. 2005) (concluding that the government did not forfeit right, as “the district court does not decide the effect of any waiver on appellate rights—[the court of appeals] does“), with United States v. Mercado, 525 F. App‘x 574, 575 (9th Cir. 2013) (“[T]he government forfeited its right to enforce the waiver by failing to object to the district court‘s unqualified advisement that [defendant] retained the right to appeal the court‘s judgment.“). We decline to weigh in here, becаuse, assuming for the sake of argument that the government forfeited its right to enforce the appeal waiver, Guzman‘s sentencing challenge fails on the merits.
Contrary to Guzman‘s contentions, Dean does not authorize district courts to impose a sentence below a statutory mandatory minimum. Dean merely held that courts can consider the
IV
A
Morales first challenges the district court‘s denial of his motion under Federal Rules of Evidence 404(b) and 403 to exclude at trial evidencе of uncharged conduct, specifically, that he possessed, used, accessed, or sold marijuana and firearms. The district court agreed with the government that evidence referencing Guzman‘s Glock 19 and a different gun that another co-conspirator allegedly possessed at Young Running Crane‘s home was admissible because it was probative of, and “intertwined” with, the methamphetamine conspiracy. Specifically, the district court found that testimony about those two firearms indicated that Morales sought “to keep the drugs safe” and to ensure that nothing would go “wrong” during the drug deals. The district court did, however, preclude all other references to firearms. It also found that evidence of marijuana was similarly “inextricably intertwined” with the methamphetamine conspiracy, in particular because its discovery in the minivan “then led to the search warrant of [Young Running Crane‘s] residence where [officers] found methamphetamine and more marijuana.” And the district court found that any danger of unfair prejudice that admission of the evidence could pose to Morales was outweighed by the evidence‘s probative value. On appeal, we review a district court‘s evidentiary rulings for an abuse of disсretion. United States v. Thomas, 760 F.3d 879, 883 (8th Cir. 2014).
Rule 404(b) “excludes evidence of specific bad acts used to circumstantially prove a person has a propensity to commit acts of that sort.” United States v. Johnson, 439 F.3d 884, 887 (8th Cir. 2006). But this rule does not apply to evidence “intrinsic” to the charged offense. Thomas, 760 F.3d at 883–84. “[I]ntrinsic evidence[]
Here, the district court did not abuse its discretion in admitting as intrinsic evidence the references tо Morales‘s involvement with marijuana and two firearms. The district court could reasonably conclude that such evidence was “inextricably intertwined” with the methamphetamine conspiracy, or that at the very least it completed the story or provided context to that crime. See id. at 884–85 (affirming admission of evidence of defendant‘s distribution of crack cocaine, although he was only charged with heroin-related offenses). At the Days Inn, Morales told the CI that there was both marijuana and methamphetamine at Young Running Crane‘s home, and that a co-conspirator there “ha[d] a pistol guarding the meth.” Thаt same day, agents heard that Guzman possessed a Glock 19 intended for “protection” during drug sales. This fact motivated the agents, at least in part, to seek assistance in stopping the minivan with a marked patrol car. Marijuana discovered in the minivan, in turn, led to the search of Young Running Crane‘s home, where law enforcement officers ultimately found the methamphetamine. Other drug- or weapons-related evidence is not invariably admissible as intrinsic evidence in a drug trafficking prosecution, but the district court was within its discretion in admitting the evidence here. And “recogniz[ing] the overall strength of the government‘s case and not[ing] that this evidence played only a small part,” we also conclude that the evidence was properly admitted under Rule 403. United States v. O‘Dell, 204 F.3d 829, 834 (8th Cir. 2000).
B
Morales‘s advisory range under the Guidelines was life imprisonment. The district court varied downward and imposed a 360-month sentence. On appeal, Morales argues that the district court procedurally erred in calculating his base offense level and in applying four sentencing enhancements. We address each of his challenges in turn, reviewing the district court‘s factual findings for clear error and its construction and application of the Guidelines de novo, United States v. Sykes, 854 F.3d 457, 459 (8th Cir. 2017), keeping in mind that “[t]he Government must prove by a preponderance of the evidence each of the facts necessary to establish a sentencing enhancement,” United States v. Razo-Guerra, 534 F.3d 970, 975 (8th Cir. 2008).
First, Morales argues that the district court‘s finding that he was responsible for 31,289.36 kilograms of marijuana equivalent, resulting in a base offense level of 36 under Guidelines § 2D1.1(c)(2), was clearly erroneous. Before sentencing, an initial
At the sentencing hearing, Warkenthien testified about Morales‘s insistence that the CI purchase the 566.9 grams of methamphetamine. Warkenthien testified that Morales pushed for the CI to buy that amount as part of Morales‘s plans to sell only large quantities of methamphetamine. According to Warkenthien, however, the ATF did not make that purchase because the Bureau‘s internal rules would have required Morales‘s immediate arrest, effectively shutting down the investigation before agents discovered the identity of Morales‘s source. Warkenthien‘s testimony was consistent with the CI‘s trial testimony that Morales asked him to purchase that quantity of methamphetamine for $16,500. At the conclusion of the sentencing hearing, the district court overruled Morales‘s objection to the 566.9 grams and adopted the amended PSR‘s drug quantity calculation.
We conclude that the district court did not clearly err in including the 566.9 grams of methamphetamine in the final drug amount. Under the Guidelines, even drugs that were not confiscated can be attributed to a defendant where the amount seized does not reflect the scale of the offense. § 2D1.1 cmt. n.5. In such a case, “the court shall approximate the quantity of the controlled substance,” id., and may consider all relevant information so long as it is sufficiently reliable, see United States v. Sicaros-Quintero, 557 F.3d 579, 582 (8th Cir. 2009). In this case, more than sufficient evidence, including Warkenthien‘s testimony at the sentencing hearing, supports a finding that Morales could have provided the 566.9 grams of methamphetamine to the CI had the ATF agreed to purchase it.
Based on a statement the district court made at the sentencing hearing, Morales nevertheless argues that the court clearly erred in including the 566.9 grams. When ruling on the final drug amount, the court stated, “I find that all of the quantities set forth in [the amended PSR] . . . are amounts that were actually confiscated.” But the government never argued that the 566.9 grams were seized. To the contrary, it expressly urged the district court to include that amount despite the fact that it had not been confiscated. When the basis of the parties’ point of contention is this clear, we would be remiss to conclude that the district court ruled on something other than the precise issue before it. Cf. United States v. Miles, 499 F.3d 906, 909–10 (8th Cir. 2007) (in sentencing context, where the record made clear that district court listened to parties’ arguments and considered supporting evidence, court of appeals would not find that district court failed to consider issue). There was ample evidence to support the district court‘s drug quantity calculation, and its passing erroneous remark that all the drugs were “confiscated” does not alter the record on this issue. It was undisputed that the 566.9 grams were not in fact confiscated. Accordingly,
Next, Morales argues that the district court clearly erred in applying the two-level enhancement under
Morales next contends that the district court clearly erred in applying a two-level enhancement under
Finally, Morales argues that the district court clearly erred in applying a four-level enhancement under
The Guidelines define “participant” as “a person who is criminally responsible for the commission of the offense,” even if he or she was not convicted.
The district court did not clearly err in finding that Young Running Crane and Mоrales‘s source were criminally responsible for relevant conduct. The government presented evidence that Young Running Crane knowingly permitted Morales, Guzman, and the third co-conspirator to store a “brick-size” quantity of marijuana—at least one pound—at her home shortly before the conspirators’ arrest. The PSR, as adopted by the district court, included that marijuana as relevant conduct, which Morales does not contest on appeal. See United States v. Gordon, 510 F.3d 811, 817 (8th Cir. 2007) (“The district court may consider as relevant conduct all drugs that the government shows by a preponderance of the evidence were a part of the same course of conduct or common scheme as the conspiracy ....“). Similarly, ample evidence supports the district court‘s conclusion that Morales‘s source was a participant. We have held that an ongoing supplier relationship may establish participant status under
For all of the foregoing reasons, we affirm Morales‘s conviction and sentence.