United States v. Dean RamirezUnited States v. Dean Ramirez
Hakeem Ishola of Ishola Law Firm, P.C., Salt Lake City, UT, for Defendant-Appellant Jose Antonio Vazquez.
Stephen R. McCaughey of Salt Lake City submitted a brief for Defendant-Appellant Julio Cesar Lopez; and Roy D. Cole of Law Office of Roy D. Cole, LLC, Ogden, UT, submitted a brief for Defendant-Appellant Eduardo Mozqueda-Ramirez.
Elizabethanne Claire Stevens, Assistant United States Attorney (Paul M. Warner, United States Attorney, with her on the joint brief for all defendants), Salt Lake City, UT, for Plaintiff-Appellee.
Before HENRY, Circuit Judge, McWILLIAMS, and SEYMOUR, Senior Circuit Judges.
SEYMOUR, Circuit Judge.
I
The record reflects that law enforcement officials engaged in a long-term investigation of a suspected drug trafficking conspiracy in Ogden, Utah. In the course of its investigation, the government sought and was granted authorization to wiretap the phone of Jose Aparicio, a.k.a. “Guido,” a suspected member of the conspiracy. The government subsequently filed an application with the district court seeking authorization to wiretap Mr. Ramirez‘s cellular phone. With its application, the government included an affidavit from Agent John Barrett of the F.B.I. describing the accumulated evidence of Mr. Ramirez‘s involvement in drug trafficking.
In his affidavit, Agent Barrett described the role of a confidential source in gathering evidence of Mr. Ramirez‘s involvement in drug trafficking. The confidential informant spoke directly to Mr. Ramirez and his associates concerning the drug trafficking enterprise and corroborated information from an anonymous tipster that hidden compartments were being installed in vehicles at Mr. Ramirez‘s auto repair shop for use in smuggling drugs. Under law enforcement supervision, the informant made a number of drug purchases in which Mr. Ramirez was the suspected supplier. On January 29, 2001, the confidential informant consummated a drug deal with Francisco Madrigal, an alleged co-conspirator of Mr. Ramirez, involving methamphetamine and cocaine that Mr. Ramirez was suspected of supplying. Pen register analysis of Mr. Madrigal‘s phone indicated Mr. Madrigal called Mr. Ramirez twice during the drug transaction.
Agent Barrett recounted in his affidavit the stop of Mr. Ramirez for a traffic violation following his visit to Mr. Madrigal‘s house. The suspected purpose of the visit was to supply Mr. Madrigal with drugs for an upcoming sale to the confidential informant. The particulars of the stop of Mr. Ramirez are described in greater detail below in the context of a motion to suppress. At this point, we note only Mr. Madrigal‘s statements in a nearly concurrent traffic stop. During that stop, Mr. Madrigal identified Mr. Ramirez as the source of cocaine and methamphetamine discovered in the search of his vehicle.
On March 24, 2003, the district court issued an order authorizing the wiretap of Mr. Ramirez‘s cellular phone. Numerous conversations were subsequently monitored and recorded pursuant to the order. Prior to trial, several defendants filed motions to suppress the evidence obtained from the Ramirez wiretap, arguing the government failed to make the necessary showings to obtain the order and failed to adequately minimize the interception of non-pertinent conversations. The district court found that two prerequisites for the authorization of a wiretap order—probable cause and necessity—were met. The issue of adequate minimization was deferred for further proceedings.
The government thereafter submitted a memorandum, including an affidavit by Agent Barrett, in opposition to suppression of the wiretap evidence on minimization grounds. In his affidavit, Agent Barrett described the VoiceBox III computer program used to collect and store wiretap data and the written procedure for the minimization of non-pertinent calls.2 Defendants expressed the following concerns with particular sets of calls: forty-one calls on the Ramirez line where the computerized monitoring program failed to disclose the time counts for minimizations; sixteen calls over two minutes which may or may not have been minimized and which were allegedly not pertinent and should have been minimized; twelve non-minimized calls over two minutes that were allegedly non-pertinent; and nineteen calls over two minutes for which there is no audio recording or synopsis. The government responded directly to each of these assertions by way of Agent Barrett‘s affidavit. The district court concluded: “it‘s very clear from the affidavit of Agent Barrett that the general minimization effort certainly satisfied the statute . . . [and] it appears to me quite clear that the wiretap statute requirements were complete as far as minimization.” Vasquez Rec., vol. IV at 15-16. Accordingly, the district court held the wiretap recordings admissible.
In addition to the wiretap evidence, Mr. Ramirez sought suppression of the fruits of two unrelated traffic stops. The first stop on February 16, 2001, was rooted in an arranged drug deal between the government‘s confidential informant and Mr. Madrigal. Mr. Madrigal told the informant the drugs would be delivered to his house prior to the sale, and law enforcement established surveillance of Mr. Madrigal‘s house in anticipation of the supplier‘s arrival. The surveilling officers observed a white pick-up truck containing two Hispanic males arrive at the residence. The driver entered the house and, a short time later, exited and drove away. An officer positioned nearby stopped the truck shortly thereafter for a traffic violation. The driver was identified as Dean Ramirez. The officer, after returning Mr. Ramirez‘s relevant documentation, asked if he could search the vehicle. Mr. Ramirez consented, and the officer found $5,060.00 hidden in the gearshift boot on the floor of the truck. Mr. Ramirez denied ownership of the money and speculated the cash belonged to a mechanic who had recently worked on the vehicle.
On May 15, 2002, Agent Troy Burnett observed a white truck, different from the one involved in the February 2001 stop, driving above the speed limit. When Agent Burnett caught up with the vehicle, it was parked at the house of a known drug user and alleged drug distributor. From the vantage point of his police cruiser, Agent Burnett observed an individual entering the driver‘s side of the truck. Agent Burnett concluded that the truck could not have been parked for “more than a minute or so” before the driver was seen entering it. Id. Agent Burnett pulled up behind the truck before it could drive away and engaged his police lights. He exited his vehicle, and Mr. Ramirez exited the white truck. Agent Burnett and Mr. Ramirez recognized each other from prior encounters and addressed each other by name. The agent obtained Mr. Ramirez‘s driver‘s license, vehicle registration, and proof of insurance.
Near the outset of the stop, Agent Burnett requested the assistance of a canine unit. Before the dog arrived, the agent sought and was denied consent from Mr. Ramirez to search the truck. He then questioning both Mr. Ramirez and the resident of the house. Mr. Ramirez told the officer he had gone to the home to obtain auto parts. The resident of the house said Mr. Ramirez had come to borrow a magazine. During these interactions Agent Burnett gauged Mr. Ramirez‘s demeanor to be more anxious than in their prior encounters. After the arrival of the canine unit, the dog performed a sniff of the exterior of the truck. It scratched and barked at the driver‘s side door, the signal indicating the presence of drug odors, and the officers and the dog began an interior search of the truck. Agent Burnett discovered $30,020 in the vehicle.
Prior to trial, Mr. Ramirez challenged the legality of both stops and sought to suppress the money retrieved from the searches. After a hearing, the district court concluded that Mr. Ramirez had voluntarily consented to the February 2001 vehicle search, and that the May 2002 detention was justified by reasonable suspicion and the interior search was supported by probable cause. Although the evidence obtained in both searches was deemed admissible on Fourth Amendment grounds, the money discovered in the February 2001 stop was not admitted at trial after the district court concluded its prejudicial effect outweighed its probative value. The court determined the money found in the May 2002 search was admissible, and the government presented that evidence at trial.
In addition to the contested traffic stops, there were a number of searches of defendants and their associates that produced relevant evidence. On January 8, 2003, Agent Aaron Johnson of the Ogden City police department visited several apartments at 1095 16th Street in response to an anonymous complaint of drug activity at that address. The agent initially knocked on the door of apartment four, but was told by the residents of the unit that the prior occupants had moved to apartment five. He then knocked on the door of apartment five. At the time of the search, Michael Hurst owned unit five and had lived there when Mr. Lopez and a man known as Javier lived in apartment four. Mr. Hurst testified that while he lived in apartment five, Mr. Lopez, known to him as Emilio Felix, had on at least one occasion supplied him with a small amount of methamphetamine.
When Mr. Hurst vacated apartment five, he left behind a step exercise machine. In early November, Mr. Lopez and Javier moved in and began paying rent to Mr. Hurst. By mid-November, Mr. Lopez had “faded away,” Ramirez Rec., vol. XIII at 168, and was living with his wife “somewhere out north.” Ramirez Rec., vol. XIV at 7. By mid-December, both of the original occupants had vacated the apartment and it was occupied by Raul Gaitan-Dominguez and Jesus Solis-Gaona. Javier paid December‘s rent for the apartment. Mr. Hurst contacted the apartment‘s residents after the January rent was late and asked to speak with Mr. Lopez. One of the then-current occupants called Mr. Lopez, and after a short conversation between Mr. Hurst and Mr. Lopez, one of the new residents paid Mr. Hurst the January rent.
On the day of the search, Mr. Gaitan-Dominguez consented to Agent Johnson‘s search of apartment five. During the search, Agent Johnson noticed numerous rolls of packing tape and plastic wrap products in a closet just off the living room. Further investigation of the closet uncovered methamphetamine in a “ball about the size of a softball” stored in a plastic grocery bag. Ramirez Rec., vol. XIII at 92. More methamphetamine was found in the kitchen packaged in one pound bricks.3 The methamphetamine bricks were individually packed inside a ziploc style bag, wrapped in plastic wrap sprayed with what Agent Johnson described as a “cleaning agent” that “smelled like Lysol,” then wrapped again with plastic wrap, and finally covered by tape. Id. at 94. Agent Johnson located a number of other items in the apartment, including Mr. Gaitan-Dominguez‘s Mexican passport; a vehicle title in Mr. Lopez’ name with the apartment five address; a letter to Mr. Lopez from a collection agency for past due gas payments at the apartment five address; a phone bill addressed to Mr. Lopez at the apartment five address; and a number of photographs picturing Mr. Lopez and Mr. Gatain-Dominguez, among others.
On April 18, 2003, Agents Burnett and Johnson conducted a consent search of the residence of Mr. Galaz-Feliz, a suspected member of the conspiracy. The officers recovered a firearm, $26,175 in cash, and what were interpreted to be drug accounting ledgers or pay/owe sheets.4 During the search, a drug dog alerted to a slashed tire in the basement of the house. The officers reported Mr. Galaz-Feliz was talking on the phone during the search and was overheard requesting the other party get a hold of Dinosaurio.5 On the evening of the search of Mr. Galaz-Feliz‘s residence, the Ramirez wiretap captured a number of conversations about the search.
On April 28, 2003, Agent Johnson searched a storage unit in Ogden pursuant to a search warrant. According to storage business records, that unit was leased to Emilio Felix, an alias used by Mr. Lopez. In the unit, Agent Johnson discovered a photograph of Mr. Lopez; an insurance policy for Emilio Felix at 1095 16th Street, Apartment Four; a box of sandwich bags; a digital scale; plastic wrap with a “lysol type smell . . . exactly alike . . . to the stuff that the methamphetamine was packaged in apartment number five;” and methamphetamine residue in the packaging as confirmed by chemical analysis. Ramirez Rec., vol. XIII at 123.
Finally, law enforcement officials seized two cellular phone receipts from Mr. Vasquez when he was arrested. At the time of his arrest, he did not possess drug related materials, firearms, or large sums of cash. See Ramirez Rec., vol. XVII at 60; Ramirez Rec., vol. XVI at 20. Mr. Vasquez unsuccessfully argued against the admission of the receipts as hearsay evidence before the district court.
II
For ease of analysis, we have divided the claims from the four separate appeals into four thematically related subgroups: admissibility of evidence, sufficiency of the evidence, issues with counsel, and sentencing. The first group, contentions that particular pieces of evidence were wrongly admitted, includes the conversations recorded by the Ramirez wiretap; the fruits of Mr. Ramirez‘s two traffic stops; the cell phone receipts found on Mr. Vasquez upon his arrest; and co-conspirator statements challenged by Mr. Vasquez. The second group includes Mr. Lopez‘s argument that there was insufficient evidence to convict him for possession with intent to distribute methamphetamine, and Mr. Lopez, Mr. Mozqueda-Ramirez, and Mr. Vasquez‘s claims that there was insufficient evidence to support their respective conspiracy convictions. The third category consists of Mr. Mozqueda-Ramirez‘s claim of ineffective assistance of counsel and his appeal of the district court‘s denial of his counsel‘s motion to withdraw prior to trial. The final section focuses on Mr. Mozqueda-Ramirez‘s challenge to the application of mandatory minimums in light of Booker, and Mr. Ramirez‘s arguments about the constitutionality of sentencing factors in relation to his sentence and the vagueness of his underlying charge.
1. Ramirez Wiretap
Mr. Lopez, Mr. Ramirez, and Mr. Vasquez argue the district court erred in authorizing the Ramirez wiretap and, as a result, the evidence obtained via the wiretap should be suppressed. They variously attack the wiretap order on the grounds that the government failed to demonstrate probable cause, necessity, and proper minimization. We address each of the three issues below and conclude the district court properly authorized the wiretap and admitted the recorded conversations as evidence at trial.
a. Probable Cause
Title III of the
In evaluating the presence of probable cause, we look primarily to the government‘s wiretap application and Agent Barrett‘s attached affidavit. The agent described a number of specific conversations implicating Mr. Ramirez in the distribution of contraband. Among those were a pen register analysis showing two phone calls placed to Mr. Ramirez by Mr. Madrigal during a drug deal with a confidential source, see Wiretap Aff. ¶ 23, and a series of recorded phone calls between Mr. Ramirez and Mr. Aparicio6 in which the two parties discussed the sale of guns and drugs either explicitly or in code. See Wiretap Aff. ¶ 52 (“[Mr. Aparicio] then asked Ramirez, if he‘ll `take the gun to the shop.‘“); Id. at ¶ 62 (Ramirez asked Mr. Aparicio “for more cold one,” allegedly in reference to methamphetamine); id. ¶ 73 (Mr. Aparicio told Mr. Ramirez he “had the stuff“); id. ¶ 75 (Mr. Ramirez asked Mr. Aparicio for an “8,” an alleged reference to an 1/8 ounce of cocaine, and stated he had the money). In light of this information, we conclude a person of reasonable caution could believe a crime had been committed. Thus, the order authorizing the wiretap of Mr. Ramirez‘s phone was supported by probable cause.
b. Necessity
Defendants assert the government failed to adequately demonstrate the necessity of wiretapping Mr. Ramirez‘s phone. We review a district court‘s determination that a wiretap was necessary for an abuse of discretion. United States v. Ramirez-Encarnacion, 291 F.3d 1219, 1222 (10th Cir. 2002). If defendants “succeed[] in showing that the necessity requirement was not met, evidence seized pursuant to the wiretap must be suppressed.” United States v. Cline, 349 F.3d 1276, 1280 (10th Cir. 2003). Once a wiretap has been authorized, defendants bear the burden of proving it was invalid. Id.
“Title III contains a `necessity’ requirement . . . which must be satisfied before a wiretap order may be lawfully issued.” United States v. Castillo-Garcia, 117 F.3d 1179, 1185 (10th Cir. 1997) (overruled on other grounds). When requesting a wiretap, the government must provide the court with “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 or to be too dangerous.”
1) standard visual and aural surveillance; (2) questioning and interrogation of witnesses or participants (including the use of grand juries and the grant of immunity if necessary); (3) use of search warrants; and (4) infiltration of conspiratorial groups by undercover agents or informants. In addition, if other normal investigative techniques such as pen registers or trap and trace devices have not been tried, a similar explanation must be offered as to why they also would be unsuccessful or too dangerous.
Id. at 1187. The “necessity” requirement does not require that law enforcement officials exhaust all of the above procedures prior to the issuance of a wiretap warrant. The statutory requirement can be met if the government demonstrates either 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.” Id.
Mr. Lopez asserts the wiretap affidavit “did not illustrate, with particularity, the necessity for the wiretap.” Lopez Br. at 19. Mr. Lopez cites Castillo-Garcia extensively in an attempt to analogize that case‘s invalidated wiretap to the wiretap of Mr. Ramirez‘s phone. The wiretap application in Castillo-Garcia, however, was supported by “wholly conclusory language” without the benefit of a particularized discussion of how normal investigative techniques were used, or why they were not used, against the target. Castillo-Garcia, 117 F.3d at 1194. As is evident from our discussion below, the Ramirez wiretap does not suffer from the same infirmity.
Looking at each investigative technique in turn, we first consider the prior use of visual and aural surveillance. As described in the affidavit, law enforcement officials recorded the comings and goings of individuals into and out of Mr. Ramirez‘s auto repair shop and home via closed circuit television cameras.7 Furthermore, FBI agents physically surveilled Mr. Ramirez from September 2002 to March 2003. According to the government, this video monitoring and physical surveillance did not reveal “which individuals with whom Dean Ramirez associated, if any, were criminal members or customers of his drug enterprise.” Wiretap Aff. ¶ 107. Thus, the government demonstrated it had tried physical and visual surveillance and adequately explained its failure, namely, the inability of physical and visual surveillance to distinguish between legitimate customers of Mr. Ramirez‘s auto business and those associates engaged in drug trafficking.
Second, Agent Barrett demonstrated that the government had utilized a confidential informant with significant connections to Mr. Ramirez and his associates. The informant “spoke[] directly to Dean Ramirez and his associates concerning the drug trafficking activities of Dean Ramirez,” made supervised drug buys, and spent a “considerable amount of time meeting with [an associate of Mr. Ramirez] in a social setting.” Id. ¶ 9. Investigators, however, found that even this well-connected confidential source was “unable to gather detailed information about Ramirez‘s Organization or its suppliers.” Id. ¶ 97. They did not utilize confidential sources from related investigations because those informants did not have sufficiently strong ties to Mr. Ramirez, id. ¶ 101, and they did not attempt to insert an undercover agent because they believed an unfamiliar agent would have been less likely to succeed than an informant already in the confidences of the conspirators. See Castillo-Garcia, 117 F.3d at 1189. We are persuaded the government demonstrated it used a confidential informant to limited avail, and adequately explained why an undercover agent or additional informant would have been unlikely to succeed.
And finally, the use and failure of the remaining methods of normal surveillance were also well explained. As to search warrants, the affidavit stated “search warrants, consent to search investigations, and searches incident to arrest . . . executed against [individuals] and residences associated with Ramirez have failed to identify the full scope criminal enterprise.” Id. ¶ 120. Pen registers were applied to Mr. Ramirez‘s phones, but the registers did not identify the actual participants in the phone calls or provide sufficient evidence of criminal activity.
In sum, the record clearly demonstrates how each investigatory technique was tried and why it failed, or why any unutilized method was likely to be ineffective. These techniques were described not with broad generalities but with particularity to the ongoing investigation of Mr. Ramirez. Consequently, the district court did not abuse its discretion by concluding the wiretap was necessary.
c. Minimization
Defendants assert law enforcement officials failed to “minimize the interception of communications not otherwise subject to interception” as required by
We read defendants’ briefs to allege minimization problems with three specific sets of calls. When these same concerns were raised to the district court, the government submitted a detailed affidavit from Agent Barrett explaining the general minimization protocol and directly responding to defendants’ questions about particular calls. The first allegedly troubled set of calls are those where the line sheets generated by the listening software did “not disclose the time counts for minimization.” Lopez Br. at 23. However, as was noted in his affidavit, Agent Barrett manually retrieved that information and provided the data to defendants. Ramirez Rec., vol. III, doc. 110, att. A ¶ 18. Second, Mr. Lopez contends a number of calls from the Ramirez wiretap were non-pertinent and should have been minimized, see Lopez Br. at 23, but the government printed the screen image for each contested call and explained how each call was evaluated. See Ramirez Rec., vol. III, doc. 110, att. A ¶ 20. Lastly, Mr. Lopez asserts audio recordings and synopses were not provided for nineteen calls. Agent Barrett concluded six of the calls were “hookflash”8 and ten were neither monitored nor recorded by law enforcement. Id. att. A ¶ 21. In light of these explanations, and because we review minimization for the reasonableness of the efforts of law enforcement officials and not the perfection of their results, we conclude the Ramirez wiretap was properly minimized.
Mr. Ramirez argues the district court erroneously admitted evidence seized during two allegedly unlawful traffic stops. On February 16, 2001, an Ogden police officer stopped Mr. Ramirez for failing to signal while he was driving a white truck. The stop resulted in the discovery of $5,060 in cash hidden in the gearshift boot. On May 15, 2002, Agent Burnett stopped Mr. Ramirez‘s truck outside the house of a known drug user and suspected drug dealer after observing Mr. Ramirez speeding. An alert from a dog sniff on the exterior of Mr. Ramirez‘s truck led to an interior search that uncovered $30,020 in cash.
Because the government did not introduce the $5,060 found in the first search as evidence at trial, the issue of the lawfulness of the February search is moot. See United States v. Arias-Villanueva, 998 F.2d 1491, 1502 (9th Cir. 1993) (impliedly overruled on other grounds). With respect to the May 15, 2002 traffic stop, we accept the district court‘s factual findings unless they are clearly erroneous and view the evidence in the light most favorable to the government. See United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998). The ultimate determination of reasonableness under the Fourth Amendment is a question of law we review de novo. United States v. Zabalza, 346 F.3d 1255, 1258 (10th Cir. 2003).
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, and effects, against unreasonable searches and seizures.”
The first inquiry under Terry is whether the stop was justified at its inception. Id. “[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.” United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc). Mr. Ramirez does not dispute the validity of the initial stop for speeding, and he limits his challenge to the length and scope of his detention after Agent Burnett initiated the stop. Our analysis is similarly limited.
Mr. Ramirez argues, in accord with the second inquiry of Terry, that the investigative stop “exceeded the reasonable scope and duration of a traffic stop.” Ramirez Br. at 32. If we were to look only to the original justification for the stop, as Mr. Ramirez seems to suggest, he would be correct. After a validly initiated traffic stop, however, an “officer may detain a motorist for questioning unrelated to the initial traffic stop if he has an objectively reasonable and articulable suspicion that illegal activity has occurred, or the driver voluntarily consents to further questioning.” Williams, 403 F.3d at 1206. In this instance, there is no indication that the initial stop developed into a consensual encounter. Agent Burnett, however, had reasonable suspicion that criminal activity (other than the traffic violation) had occurred, thus justifying temporarily detaining and questioning Mr. Ramirez while awaiting the arrival of the canine unit.
Factors, which when taken separately may be perfectly innocent behavior, can support a finding of reasonable suspicion when taken together. Conversely, although the nature of the totality of the circumstances makes it possible for individually innocuous factors to add up to reasonable suspicion, it is impossible for a combination of wholly innocent factors to combine into a suspicious conglomeration unless there are concrete reasons for such an interpretation. In analyzing the factors that may amount to reasonable suspicion, we must be careful to judge the officer‘s conduct in light of common sense and ordinary human experience but also to grant deference to a trained law enforcement officer‘s ability to distinguish between innocent and suspicious circumstances.
United States v. Wallace, 429 F.3d 969, 975-76 (10th Cir. 2005) (citations, brackets, and quotation marks omitted). The district court discussed the following factors in holding that Agent Burnett had reasonable suspicion to believe a crime had occurred or was occurring: (1) the truck was seen parked outside a residence Agent Burnett knew to be associated with drug-dealing; (2) he saw the driver enter his vehicle after a stop of extremely short duration; (3) he had personal knowledge of Mr. Ramirez‘s participation in drug-trafficking; (4) Mr. Ramirez and the resident of the house gave different reasons for the visit; and (5) Mr. Ramirez‘s nervous behavior was inconsistent with his demeanor during previous interactions with the police.
With respect to the location of the truck, the Supreme Court has instructed that “officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Moreover, Officer Burnett testified “visits of extremely short duration” like Mr. Ramirez‘s “are a key indicator of drug activity.” Ramirez Rec., vol. II, doc. 288 at 10. See also Ramirez Rec., vol. VII at 18. We have previously recognized a “trained officer‘s ability to distinguish between innocent and suspicious circumstances” even where the conduct has an otherwise innocuous veneer. See United States v. Williams, 271 F.3d 1262, 1269 (10th Cir. 2001). Thus, although a short stop at the residence of a known drug user and suspected narcotics dealer might have an innocent explanation, we accord deference to a trained “law enforcement officer‘s ability to distinguish between innocent and suspicious actions.” United States v. Wood, 106 F.3d 942, 946 (10th Cir. 1997).
At the time of the stop, Officer Burnett was participating in the ongoing investigation of Mr. Ramirez for drug trafficking. “[K]nowledge of a person‘s prior criminal involvement . . . can . . . be a factor, along with other factors, giving rise to an articulable suspicion.” United States v. McRae, 81 F.3d 1528, 1535 n. 5 (10th Cir. 1996). See Ramirez Rec., vol. II, doc. 288 at 2. In addition, Agent Burnett noticed that Mr. Ramirez seemed “very nervous” and “evasive,” a manner of behavior that was “distinct[ly] differen[t]” than in previous police encounters. Ramirez Rec., vol. VII at 51. Although we are typically chary of affording evidentiary weight to a defendant‘s nervousness in light of the commonly unnerving nature of police stops, Agent Burnett‘s observations recognized behavior relative to an individualized baseline and was not making simply another “generic claim[] that a Defendant was nervous or exhibited nervous behavior after being confronted by law enforcement officials.” United States v. Hall, 978 F.2d 616, 621 n. 4 (10th Cir. 1992). Compare id. at 621 (“neither officer had any prior contact with Defendant with which to compare her behavior, thereby making Defendant‘s nervous appearance to the officers merely a hunch.“). Considering, as we must, all of these facts in their totality, see Williams, 403 F.3d at 1207, we conclude Agent Burnett had the necessary “particularized and objective basis for suspecting legal wrongdoing” to continue the stop. Arvizu, 534 U.S. at 273 (internal quotation marks omitted).
3. Admissibility of Cellular Phone Receipts
At trial, the government sought to offer two cellular phone receipts possessed by Mr. Vasquez at the time of his arrest as evidence of his involvement in the conspiracy. The district court admitted the receipts over Mr. Vasquez‘s hearsay objection, which he renews on appeal. “Evidentiary rulings are committed to the discretion of the trial court, and we review them only for abuse of discretion. Our review is even more deferential where the evidentiary ruling concerns the admissibility of what is claimed to be hearsay evidence.” United States v. Cestnik, 36 F.3d 904, 906-07 (10th Cir. 1994) (citation omitted).
Hearsay evidence, defined as a “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted,”
After reviewing the record in this case, we are persuaded the context of Mr. Vasquez‘s cellular receipt more closely mirrors those of the pager bill in Jefferson than the receipt in Pulido-Jacobo. Mr. Vasquez‘s receipts were dated April 21, 2003, and he was arrested in possession of the receipts on April 28, 2003. Thus, he possessed the receipts for only a single week, far less than the two months that carried the day in Pulido-Jacobo. The facts of this case further differ from those in Pulido-Jacobo in that the government did not demonstrate Mr. Vasquez possessed the two cellular telephones. The discovery of the speakers, the subject of Mr. Pulido-Jacobo‘s receipt, in the trunk of a car in which he was riding confirmed his connection to the item and the documentation of its purchase. In this case, not only were the phones not in the possession of Mr. Vasquez, but his name was not on the bill and the registrants of the phones and the individuals who paid the bills were never identified. Even in Jefferson, the bearer of the document‘s name was inscribed on the bill. Because the facts fail to tie Mr. Vasquez to the receipts other than by possession, we conclude he did not adopt their contents and the district court erred by admitting the receipts into evidence.
The question remains whether the error was harmless. As previously noted, Mr. Vasquez objected to the admission of the receipts upon
We are therefore left to analyze nontestimonial statements, the receipts, to determine whether their admission violated the confrontation rights of Mr. Vasquez. We analyze such statements under the pre-Crawford rubric of Ohio v. Roberts, 448 U.S. 56, 66 (1980), which requires “a showing of particularized guarantees of trustworthiness.” See United States v. Saget, 377 F.3d 223, 227 (2d Cir. 2004) (”Crawford leaves the Roberts approach untouched with respect to nontestimonial statements“); United States v. Franklin, 415 F.3d 537, 546 (6th Cir. 2005) (same). In evaluating the trustworthiness of the receipts, we return to our analysis from Jefferson, where we said:
The authenticity of the pager bill was not disputed. It was a bill from an established company that, on its face, gave every indicia of having been issued in the ordinary course of business. There was no indication that [Mr. Jefferson], who knew its contents, disputed the bill in any way. We need not, and do not, decide whether these factors establish the requisite “particularized guarantees of trustworthiness.” However, we do hold that they are sufficient to prevent a conclusion that it was patently obvious that the introduction of the pager bill violated [Mr. Jefferson‘s] confrontation rights . . . Thus, it was not clear error for the district court to fail to exclude such evidence under the Confrontation Clause.
Jefferson, 925 F.2d at 1254-55. We find these conclusions persuasive in light of the facts in this case and conclude the constitutional error here was not obvious.
We therefore review the violation of the hearsay rules in this case for nonconstitutional harmless error. An error is not harmless if “it has a substantial influence on the outcome or leaves one in grave doubt as to whether it had such an effect.” United States v. Wacker, 72 F.3d 1453, 1473 (10th Cir. 1995) (quotation marks omitted). The phone receipts were one among several pieces of evidence linking Mr. Vasquez to the conspiracy. Mr. Vasquez‘s phone conversations, the phone conversations of others regarding Mr. Vasquez‘s involvement, and the financial accounting sheets naming Mr. Vasquez in relation to particular quantities of money and drugs paint a vivid picture of his involvement in drug trafficking without reliance on the phone receipts. Because of the abundance of other evidence, we are convinced the error was harmless.
4. Admissibility of Co-conspirator Statements
Mr. Vasquez contends the district court further erred by admitting recorded conversations into evidence as “co-conspirator statements” under
As we have previously pointed out, “where a Confrontation Clause objection is not explicitly made below we will not address the constitutional issue in the absence of a conclusion that it was plain error for the district court to fail to raise the constitutional issue sua sponte.” United States v. Solomon, 399 F.3d 1231, 1237-38 (10th Cir.2005) (quoting United States v. Perez, 989 F.2d at 1582). At the pre-trial James hearing, Mr. Vasquez‘s counsel objected to the court‘s conclusion that the recorded statements were in furtherance of the conspiracy. See Ramirez Rec., supp vol. VI at 176-81. But Mr. Vasquez cites to no place in the record where he specifically asserted his confrontation rights or “repeatedly emphasiz[ed] his inability to cross examine” the declarants. See United States v. Summers, 414 F.3d 1287, 1297-98 n. 7 (10th Cir.2005). Consequently, we review the constitutional claim for plain error.
First, Mr. Vasquez argues the admission of transcribed phone conversations between co-conspirators ran afoul of the Supreme Court‘s holding in Bruton. Specifically, he disputes the admissibility of calls between Mr. Ramirez and Mr. Galaz-Felix while the later was incarcerated, in which the two parties appear to be discussing the debts due from Mr. Vasquez.10 Mr. Vasquez‘s Bruton argument is unpersuasive, however, because “[e]vidence which is admissible under the conspiracy exception to the hearsay rule does not violate the right to confront and cross-examine guaranteed by the Sixth Amendment. The Bruton doctrine does not rule situations . . . in which the evidence is admissible under a well recognized exception to the hearsay rule.” United States v. Cox, 449 F.2d 679, 688-89 (10th Cir.1971). See also Bourjaily v. United States, 483 U.S. 171, 183-84, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). Mr. Vazquez does not dispute on appeal the admission of the phone conversations under
Second, Mr. Vasquez contends the co-conspirator statements satisfy the analytical scheme developed in Crawford, which bars testimonial out-of-court statements unless the witness is unavailable and the defendant had a prior opportunity to cross-examine. 541 U.S. at 68, 124 S.Ct. 1354. In Crawford, the Court interpreted the primary concern of the Confrontation Clause as limiting the admission of “testimonial” hearsay. See id. at 51-53. Mr. Vasquez argues “the extra-judicial statements made by the co-defendants here . . . clearly qualifies [sic] as ‘testimonial’ and . . . are inadmissible against Mr. Vasquez under Crawford.” Vasquez Br. at 18 n. 17. We do not agree. Although the Supreme Court declined to precisely define “testimonial,” see Crawford, 541 U.S. at 68, the Court explicitly noted that, historically, “statements in furtherance of a conspiracy” present an “example” of “statements that by their nature [a]re not testimonial.”12 Id. at 56. Moreover, the Court in Crawford cited Bourjaily with approval as one of several recent cases that “hew closely to the traditional line.” Crawford, 541 U.S. at 58. In Bourjaily, the Court held the Confrontation Clause did not require an independent inquiry into the reliability of statements properly admitted under Rule 801(d)(2)(E). Bourjaily, 483 U.S. at 183. Because Crawford did not overturn Bourjaily, the latter continues to control our application of the Confrontation Clause to Rule 801 co-conspirator statements.
In sum, the statements Mr. Vasquez asserts were wrongly admitted in this case were not testimonial, and thus do not present Confrontation Clause problems under Crawford. The statements at issue were admitted pursuant to
SUFFICIENCY OF THE EVIDENCE CLAIMS
1. Mr. Lopez‘s Conviction for Possession with Intent to Distribute
Mr. Lopez contends the evidence presented at trial was insufficient to support his conviction for possession of the methamphetamine discovered at 1095 16th Street, Apartment Five. To sustain a conviction for possession with intent to distribute, the government must prove that “(1) the defendant possessed the controlled substance; (2) knew that he had it; and (3) possessed it with the intent to distribute it.” United States v. Pulido-Jacobo, 377 F.3d at 1131 (quoting United States v. Allen, 235 F.3d 482, 492 (10th Cir.2000)). Mr. Lopez disputes the sufficiency of the evidence demonstrating his knowing possession of the methamphetamine. In evaluating whether the evidence is sufficient to support the jury‘s verdict, we “review the record de novo and ask only whether, taking the evidence-both direct and circumstantial, together with the reasonable inferences to be drawn therefrom-in the light most favorable to the government, a reasonable jury could find [Defendant] guilty beyond a reasonable doubt.” United States v. Jenkins, 175 F.3d 1208, 1215 (10th Cir.1999) (quoting United States v. Voss, 82 F.3d 1521, 1524-25 (10th Cir.)). We “evaluate the sufficiency of the evidence by considering the collective inferences to be drawn from the evidence as a whole.” United States v. Wilson, 107 F.3d 774, 778 (10th Cir.1997) (brackets and quotations marks omitted).
The government did not prove Mr. Lopez actually possessed the methamphetamine during or prior to the drug seizure. His conviction was founded instead on a demonstration of constructive possession. See United States v. Carter, 130 F.3d 1432, 1441 (10th Cir.1997) (“Possession may be actual or constructive.“). “[C]onstructive possession exists where the defendant has the power to exercise control or dominion over the item,” United States v. Lopez, 372 F.3d 1207, 1212 (10th Cir.2004), and “may be established by circumstantial evidence.” United States v. McKissick, 204 F.3d 1282, 1291 (10th Cir.2000). “With regard to narcotics, we have defined constructive possession as ‘an appreciable ability to guide the destiny of the drug.‘” United States v. Culpepper, 834 F.2d 879, 881 (10th Cir. 1987) (quotation marks omitted). Constructive possession does not require exclusivity and may apply to multiple individuals. Id. at 882.
On appeal, Mr. Lopez focuses his insufficiency claim on the dearth of evidence connecting him to apartment five as of the date of the search. Having reviewed the record, we agree that the evidence presented at trial does not demonstrate Mr. Lopez was then a resident or had continuing broad dominion over the apartment.13 However, the legally determinative relationship is not the one connecting Mr. Lopez to the apartment, but the relationship linking Mr. Lopez to the seized methamphetamine. As we recently declared, the “bedrock of constructive possession . . . is the ability to control the object,” United States v. Al-Rekabi, 454 F.3d 1113, 1120 (10th Cir.2006), and not the relationship of the accused to the location where the object was discovered.14 See Lopez, 372 F.3d at 1212 (“[C]onstructive possession exists where the defendant has the power to exercise control or dominion over the item. Control or dominion over the premises where the item is found is therefore a factor, but not a requirement, for finding constructive possession of the item itself.“) (internal citations omitted). Based on the evidence described below, we conclude Mr. Lopez had sufficient control over the drugs to demonstrate constructive possession.
Phone calls made by Mr. Solis-Gaona and Mr. Gaitan-Dominguez following their arrests provide compelling evidence that Mr. Lopez exercised control over the drugs found in the apartment. See Gov‘t Ex. 1R-T1-3. After his arrest, Mr. Gaitan-Dominguez telephoned Ms. Murillo, with Mr. Lopez apparently listening in the background, see id., on a recorded prison telephone line. Mr. Gaitan-Dominguez said “Hey, dude! It‘s just so [sic] can get those things out, as soon as you can and hurry up, do it fast, in every way. Don‘t stop for any reason.” Gov‘t Ex. 1R-T1. Ms. Murillo, the speaker on Mr. Lopez’ end, responded, impliedly in reference to Mr. Lopez, “He says that he agrees. He agrees, he says.” Id. The prison phone system also recorded a conversation between Mr. Solis-Gaona and Ms. Murillo discussing the presence of drugs in the exercise machine at apartment five and the need for the “guy . . . to take the things out of the house.” Gov‘t Ex.1R-T2 at 2.15 In a third prison call involving Mr. Lopez, Mr. Gaitan-Dominguez, and Ms. Murillo, Mr. Gaitan-Dominguez told Mr. Lopez, “Well, move it, man, before they make this into a bigger deal,” and Mr. Lopez responded “I know, man.” Gov‘t Ex.1R-T3 at 3.
Although Mr. Gaitan-Dominguez and Mr. Solis-Gaona speak in vague phrases, “this guy,” “the things,” “some stuff,” a jury could reasonably infer that in these calls Mr. Lopez committed to orchestrating the removal of drugs from apartment five. The callers discuss “some stuff” hidden in the “walking thing,” and the need to “take them out from there.” Gov‘t Ex. 1R-T2 at 2. This discussion refers euphemistically, but quite specifically, to the drugs hidden in the exercise machine in apartment five. Furthermore, statements like “get those things out as soon as you can,” “he‘s going to send someone there [to take the things out of the house],” and “move it, man,” among others, demonstrate Mr. Lopez‘s ability to collect and then transfer the drugs from the apartment.
These phone conversations, and the reasonable inferences that can be drawn therefrom, when viewed, as we must, in a light most favorable to the government, support a finding that Mr. Lopez had the power to exercise control over the drugs. As the reasonable inferences that can be drawn from the phone calls meet the requirement of constructive possession, namely ability to control the contraband, see Lopez, 372 F.3d at 1212, we are untroubled by the failure of old bills and cast-off photographs to demonstrate Mr. Lopez possessed a generalized dominion over the apartment. We therefore conclude the evidence presented was sufficient to sustain Mr. Lopez‘s conviction for possession of methamphetamine with intent to distribute.
2. Evidence Supporting Conspiracy Convictions
Mr. Lopez, Mr. Mozqueda-Ramirez and Mr. Vasquez contend the government failed to prove they knowingly agreed to participate in a conspiracy. “To prove conspiracy, the government must show: (1) that two or more people agreed to violate the law, (2) that the defendant knew at least the essential objectives of the conspiracy, (3) that the defendant knowingly and voluntarily became a part of it, and (4) that the alleged co-conspirators were interdependent.” United States v. Small, 423 F.3d 1164, 1182 (10th Cir. 2005). The “government may establish these elements by direct or circumstantial evidence.” United States v. Evans, 970 F.2d 663, 668 (10th Cir.1992). “When reviewing the jury‘s decision, we must view all of the evidence, both direct and circumstantial, in the light most favorable to the government, and all reasonable inferences and credibility choices must be made in support of the jury‘s verdict.” Id. at 671 (quoting United States v. Dickey, 736 F.2d 571, 581 (10th Cir.1984)).
We examine Mr. Lopez‘s claim first. He disputes that sufficient evidence was presented to demonstrate he agreed with others to violate the law. Such an agreement “need not be explicit, but rather may be inferred from the facts and circumstances of the case.” Id. at 669. In this case, the facts from which a jury could infer an agreement include: (a) the storage unit rented in the name of Emilio Felix, Mr. Lopez‘s alias, containing paperwork in that name and sandwich bags, packing materials, a digital scale, and methamphetamine residue, see Ramirez Rec., vol. XIII at 120-124; (b) testimony from an Ogden City police officer that the “smell . . . and the wrapping” in the storage unit “was the same” as the wrapping for the drugs found in apartment five, id. at 123; (c) Mr. Gaitan-Dominguez‘s telephone conversation with Mr. Lopez, asking Mr. Lopez to “move it” after Mr. Gaitan-Dominguez was arrested in connection with drugs found in apartment five, Gov‘t Ex. 1R-T3 at 3; and (d) Mr. Lopez‘s recorded phone conversations with Mr. Ramirez discussing the transfer of money and drugs.16
Additional evidence connects an individual referred to by the conspirators as Julio, Jul, or Julia to the distribution of drugs. Mr. Lopez contends the record does not establish that the Julia or Julio appellations noted in phone calls and the drug ledger refer to him. Even assuming this is true,17 the aforementioned evidence directly implicating Mr. Lopez is sufficient to establish an agreement. In this regard, we note that the storage unit was registered to Emilio Felix, an alias unambigously connected to Mr. Lopez, see Ramirez, Rec., vol. XIII at 159, 175 (Mr. Hurst identifies Mr. Lopez as Emilio Felix, the renter of apartment five, and testifies that Mr. Lopez admitted he was both Mr. Lopez and Mr. Felix), and Mr. Lopez discussed in numerous phone calls with Mr. Ramirez what a juror could reasonably conclude was the trafficking of drugs. None of this evidence required the jury to conclude an offhand reference to an individual by the shortened or feminine form of Julio was in fact Mr. Lopez. There is sufficient evidence linking Mr. Lopez to the conspiracy even without considering evidence referencing Julio, Julia, or Juliana.
Similarly, Mr. Mozqueda-Ramirez argues there was insufficient evidence linking him to the conspiracy. He asserts the evidence connecting him to the conspiracy consisted solely of phone calls between him and Mr. Aparicio in which he made “innocuous statements regarding a white Camaro or a Brave One.” Mozqueda-Ramirez Br. at 21. He contends that the “reference to a white Camaro could have been just that, a white Camaro and not drugs,” id. at 20, and that a “Brave One” could represent a “saying that means something to Hispanics” unrelated to drugs. Id. at 21. If those references were the whole of Mr. Mozqueda-Ramirez‘s statements, we might be inclined to rule in his favor, but his conversations included numerous additional alleged coded references to drugs and money,18 in a context demonstrating his involvement in distribution.19 The extensive recorded dialogue between Mr. Mozqueda-Ramirez and Mr. Aparicio, containing what a jury could reasonably conclude was coded language relating to drug distribution, is sufficient to support Mr. Mozqueda-Ramirez‘s conspiracy conviction.
Mr. Vasquez makes similar claims as to the sufficiency of the evidence to support his conspiracy conviction. Previously, we concluded the cellular phone receipts found on Mr. Vasquez when he was arrested were mistakenly admitted into evidence at trial. Even without the aid of the receipts, however, a reasonable jury could find Mr. Vasquez guilty of conspiracy beyond a reasonable doubt. Wiretap recordings capture Mr. Vasquez directly conversing about drugs or, more precisely, terms a reasonable jury could conclude refer to drugs and drug dealing. For example, Mr. Vasquez and Mr. Aparicio engaged in the following recorded conversation:
[Jose Aparicio]: . . . do you have any material.
[Vasquez]: . . . the only thing I have left are donuts.
[Jose Aparicio]: No, no problem, I only need a quarter, a hotel.
[Vasquez]: oh.
[Jose Aparicio]: With the money on hand.
Gov‘t Ex. 4A-T7. Although the government failed to establish “donuts” had a drug-related meaning, see Ramirez Rec., vol. XIV at 50, it did provide the jury with specific secondary drug-related definitions for the terms “hotel” and “quarter.” See id. at 46.
Furthermore, numerous references to Mr. Vasquez, by his given name or by his nickname, Chilango,20 in other recorded wiretap conversations indicate his involvement in drug trafficking.21 Furthermore, Mr. Galaz-Felix‘s ledger includes a number of entries for “Vasquez” and variations of the nickname Chilango accompanied by references to money and items and quantities that could be interpreted as drug related euphemisms. Taking this evidence together with the reasonable inferences to be drawn therefrom in the light most favorable to the government, we conclude a reasonable jury could find Mr. Vasquez guilty of conspiracy beyond a reasonable doubt.
TRIAL COUNSEL ISSUES
1. Claim of Ineffective Assistance of Mr. Mozqueda-Ramirez‘s Counsel
Mr. Mozqueda-Ramirez argues his original trial counsel was ineffective for failing to file pre-trial motions or join the motions of other defendants and for failing to recognize a conflict of interest earlier in the trial process. As we have previously noted, however, “[i]neffective assistance of counsel claims should be brought in collateral proceedings, not on direct appeal. Such claims brought on direct appeal are presumptively dismissible, and virtually all will be dismissed.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.1995). See also Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). Accordingly, we dismiss Mr. Mozqueda-Ramirez‘s present ineffectiveness claim. He may reassert this claim in future collateral proceedings.
2. Denial of Motion for Withdrawal of Mr. Mozqueda-Ramirez‘s Counsel
Mr. Mozqueda-Ramirez asserts the district court erred in denying his attorney‘s motion to withdraw as counsel. See Mozqueda-Ramirez Rec., vol. II at 163. We review the denial of such a motion for an abuse of discretion. See United States v. Johnson, 961 F.2d 1488, 1490 (10th Cir.1992). “To warrant a substitution of counsel, the defendant must show good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict which leads to an apparently unjust verdict.” United States v. Porter, 405 F.3d 1136, 1140 (10th Cir.2005) (quotation marks omitted). In his brief, Mr. Mozqueda-Ramirez restates his ineffectiveness claim, discussing the difficulties encountered by counsel in preparing for trial in a limited time frame and the “scant“ness of evidence proving his involvement in the conspiracy, essentially reiterating his sufficiency arguments. He does not demonstrate good cause for removal of counsel as defined in Porter. Our independent review of the March 2, 2004 motion hearing before the magistrate judge does not convince us of the existence of a complete breakdown in the attorney-client relationship. See Ramirez Rec., sup. vol. VII at 9 (Mr. Mozqueda-Ramirez explaining to the magistrate judge, “I just want to switch attorneys.“). We are not persuaded the district court abused its discretion in denying Mr. Mozqueda-Ramirez‘s request for withdrawal of his attorney.
SENTENCING ISSUES
1. Application of Mandatory Minimum
The district court sentenced Mr. Mozqueda-Ramirez to 151 months imprisonment, followed by five years of supervised release, in accordance with the lower end of the recommended guidelines range. See Rec., vol. XI at 16. Mr. Mozqueda-Ramirez now asserts “the trial judge erred by imposing minimum mandatory sentencing in light of . . . Blakely . . . and . . . Booker.” Mozqueda-Ramirez. Br. at 25. In doing so, he fails to cite facts in the trial record or post-Booker case law from the Tenth Circuit to clarify and support his claim. As best as we can decipher, a statutory minimum mandatory sentence of five years was required on Mr. Mozqueda-Ramirez‘s conviction for conspiracy to distribute controlled substances, and Mr. Mozqueda-Ramirez‘s argument is that the application of a mandatory minimum violated his Sixth Amendment right to a jury trial. We have held, however, that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), “does not apply to statutory minimum sentences.” United States v. Harris, 447 F.3d 1300, 1307 (10th Cir.2006). Consequently, although we cannot tell from the provided record how the minimum mandatory on one count factored into his total guideline range, the court did not err in sentencing him to the extent that the sentence incorporated a mandatory minimum required by statute.
2. Sentencing of Mr. Ramirez
Mr. Ramirez contends the district court erred by imposing a sentence based on facts not proven beyond a reasonable doubt or admitted by him, in violation of Booker and its antecedents. Specifically, he argues the district court committed a constitutional Booker error by relying on evidence not proven to the jury to establish his possession of a gun, his use of a minor, and his leader status. See United States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir.2005).
The Probation Office, in drafting Mr. Ramirez‘s presentence report (“PSR“), originally assigned a base offense level of 38. At Mr. Ramirez‘s sentencing hearing, the district court rejected the PSR‘s recommendation and instead assigned a base level of 32 to account for a lower drug quantity. See Ramirez Rec., vol. XXI at 19. The court supplemented the base level of 32 with 4 additional levels for being a leader, 2 for possession of a gun, and 2 for the use of a minor to commit an offense. Mr. Ramirez‘s offense level then totaled 40, which led to a recommended range of 360 months to life when combined with his criminal history category of IV. The court noted it did “not believe that [18 U.S.C. §] 3553 requires a life sentence.” Id. at 4. Before determining Mr. Ramirez‘s actual sentence, the court “recognize[d], as we all do now, [the Sentencing Guidelines] are not mandatory. They are a factor.” Id. at 26. See also id. at 4 (“I‘m not bound by the guidelines.“). The court then sentenced Mr. Ramirez to 30 years imprisonment and 5 years of supervised release.
The type of constitutional error Mr. Ramirez asserts does not apply here because the district court did not apply the guidelines as mandatory. “[C]onstitutional [Booker] error . . . occurs when the district court applies the Guidelines in a mandatory fashion, makes factual findings (other than the fact of prior convictions), and imposes a sentence above the maximum that would apply in the absence of such findings.” United States v. Yazzie, 407 F.3d 1139, 1144 (10th Cir.2005) (emphasis added). As the Supreme Court itself indicated in Booker,
[i]f the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.
543 U.S. at 233, 125 S.Ct. 738. The remedy in Booker established an advisory scheme, and the district court in this case properly contemplated the guideline recommendations as a non-binding factor. There was no “constitutional Booker error” as it was defined in Yazzie and Gonzalez-Huerta.
After Booker, the fixed statutory maximum and not the discretionary guidelines range establishes the “maximum” for purposes of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See United States v. Crockett, 435 F.3d 1305, 1319 (10th Cir.2006). Only if Mr. Ramirez‘s sentence exceeded the statutory maximum, which in this case was life imprisonment,22 would he have a potentially cognizable Apprendi argument. The district court‘s use of sentencing enhancements did not violate Mr. Ramirez‘s Sixth Amendment rights.
Mr. Ramirez also contends
The Sentencing Guidelines provide that “[c]onduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable guideline sentencing range.” U.S.S.G. § 1B1.3, backg‘d, and the Supreme Court has said sentencing courts “may exercise[ ] discretion . . . in imposing sentence within statutory limits in the individual case.” Apprendi, 530 U.S. at 481 (emphasis in the original). See also Booker, 543 U.S. at 233. Where the guidelines are merely advisory, as they were at the time of Mr. Ramirez‘s sentencing, the maximum sentence is the statutory limit, not the upper bound of the calculated guidelines range.
Mr. Ramirez‘s only conviction was for violating
CONCLUSION
We AFFIRM the convictions and sentences of all defendants.
Notes
Gov‘t. Ex. 1R-T2.[Mr. Solis-Gaona]: Tell this guy that‘s over here, to . . . to take the things out of the house.
[Ms. Murillo]: Yeah, I already . . . I already told him. He‘s going to send someone there.
. . . .
[Mr. Solis-Gaona]: Did you tell him about . . . about the walking thing?
[Ms. Murillo]: No.
[Mr. Solis-Gaona]: Didn‘t he tell you?.
[Ms. Murillo]: uh-uh
[Mr. Solis-Gaona]: But that guy already knows about . . . On that walking thing there‘s . . . down there, there‘s some stuff there, have him take them out from there. . . .