United States of America, Appellee, v. Miguel R. Mendoza, Jr., also known as Michael Mendoza, Appellant. United States of America, Appellee, v. Michael R. Clinton, Appellant.
No. 02-2834, No. 02-3384
United States Court of Appeals FOR THE EIGHTH CIRCUIT
September 2, 2003
Appeals from the United States District Court for the Western District of Missouri. [PUBLISHED] Submitted: April 17, 2003
Miguel R. Mendoza, Jr. and Michael R. Clinton were each charged in various counts contained in a ten-count superceding indictment charging drug conspiracy, drug distribution, and possession of a firearm in connection with drug trafficking. Mendoza proceeded to trial and was convicted of the charges against him. The district court1 sentenced Mendoza to 360 months imprisonment. Clinton pleaded guilty to the conspiracy charge and the firearm charge and received consecutive 121-month and 60-month sentences. In these consolidated appeals, Mendoza raises evidentiary and sentencing issues. Although Clinton pleaded guilty to the firearm charge, he appeals his conviction on that charge, arguing that his conduct did not violate the statute. We affirm Mendoza‘s convictions and sentences and dismiss Clinton‘s appeal.
I.
The South Central Missouri Drug Task Force began investigating reports about several Hispanic men selling large quantities of methamphetamine in the Hebron River Access area of the Mark Twain National Forest in May 2001. Paul Yeager, a confidential informant, identified Clinton as a distributor for a person Yeager identified as Mendoza. Through Yeager, Task Force Officer (TFO) Stanley Horton contacted and befriended Clinton and made several methamphetamine purchases from Clinton over the course of the summer.
Mendoza was driven to and from various meetings with TFO Horton by Kella Dobbs, also charged in the indictment. During the transactions, Dobbs performed various tasks at Mendoza‘s direction, including measuring and weighing the methamphetamine. Dobbs also set up at least one of the transactions between TFO Horton and Mendoza. Dobbs testified pursuant to a plea agreement at Mendoza‘s trial that he was hired by Mendoza to drive Mendoza around and to watch his back. Dobbs carried a shotgun in the cab of his truck at all times. Dobbs also testified that Clinton sold only small amounts of drugs until Mendoza arrived in the area.
Larry Agee, who was not charged in the indictment, also testified pursuant to an agreement with the government. Agee testified that Clinton introduced him to Mendoza in the spring of 2001 and that he was eventually hired by Mendoza to drive Mendoza around, collect money, and deliver drugs. In June 2001, Agee flew to California and picked up methamphetamine for Mendoza. Agee received one-half ounce of the methamphetamine in exchange for transporting the methamphetamine for Mendoza. Agee described Mendoza as the boss and Clinton as the dealer.
Special Agent Dennis Deason also purchased methamphetamine from Clinton and observed Dickie Clouse interacting with Mendoza. Clouse told Agent Deason that he met Mendoza in Wichita, Kansas and brought him to the Hebron River Access area to set up his drug operation. Clouse described himself as the local guy who told Mendoza who to sell to. Clouse told Agent Deason that he made between $3,000 and $5,000 per month brokering drug deals.
On appeal, Mendoza argues that the district court erred in admitting evidence of his prior convictions, violated
Pursuant to his plea agreement, Clinton received a 121-month sentence on the conspiracy charge and a 60-month sentence on the firearm charge, to be served consecutively. Clinton‘s only argument on appeal is that his sentence on the firearm charge should be vacated because his conduct did not constitute a violation of
II. Mendoza
A. Prior Convictions
The district court allowed the government to introduce a certified copy of Mendoza‘s 1998 Kansas convictions for possession of methamphetamine and possession of methamphetamine by a dealer without a tax stamp, which the government offered to show Mendoza‘s knowledge, intent, and motive. See
Rule 404 prohibits introduction of prior convictions to show a defendant‘s character, but allows such evidence to prove, among other things, a defendant‘s motive, intent, opportunity, and knowledge.
Mendoza also argues that his prior convictions should not have been used to enhance his sentence because the district court violated
Section 851‘s requirements pertain to enhancements to a defendant‘s statutory penalty range, not to Sentencing Guideline enhancements. McMurray, 20 F.3d at 833. Thus, the mandates of § 851 are irrelevant when a defendant‘s prior conviction is used to determine his criminal history category for Guidelines purposes as long as
Mendoza concedes this to be the case, but argues that if he is correct that the district court erred in adding six levels to his base offense level (four levels under USSG § 3B1.1(a) and two levels under USSG § 2D1.1(a)(3)), his offense level should have been only 32, which, when combined with a criminal history category of V, would have resulted in a sentencing range of 188-235 months. As discussed below, the district court did not err in enhancing Mendoza‘s sentence by six levels and therefore did not err in failing to hold a § 851 hearing.
B. USSG § 3B1.1(a) Enhancement for Being a Leader or Organizer
The district court assessed a four-level enhancement to Mendoza‘s base offense level because it found that Mendoza was a leader or organizer of a criminal activity involving at least five participants. See USSG § 3B1.1(a). We review the district court‘s factual findings supporting its application of the Sentencing Guidelines for
The five participants identified by the district court were Mendoza, Clinton, Dobbs, Clouse, and Agee. Mendoza argues that Agee should not count as a participant because he was not charged in the indictment. “Persons who are not indicted or tried, but who are nonetheless criminally responsible for defendant‘s crime, are ‘participants’ under § 3B1.1.” United States v. Brockman, 183 F.3d 891, 899 (8th Cir. 1999) (citing § 3B1.1, comment. (n.1) and United States v. Freeman, 30 F.3d 1040, 1042 (8th Cir. 1994)), cert. denied, 528 U.S. 1080 (2000). Agee testified that he flew to California to pick up methamphetamine and delivered it to Mendoza in Missouri. He also testified that Mendoza hired him to drive Mendoza around, to collect money, and to deliver drugs. These activities furthered the conspiracy and Agee was clearly a participant for purposes of the enhancement.
Mendoza also argues that he was neither a leader nor an organizer because the drug trafficking had been going on long before he arrived in the Hebron River Access area in May 2001. Regardless of when other participants began selling drugs in the area, the most important relevant conduct for Mendoza is that charged in the indictment–May to August 2001. Mendoza was present for the full length of time charged in the conspiracy. Further, Mendoza need not have been the original organizer. He is subject to the enhancement if he directed at least one other participant. See United States v. Eis, 322 F.3d 1023, 1025 (8th Cir. 2003) (per curiam). Relevant factors to be considered include “the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning and organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.” Brockman, 183 F.3d at 899 (citing USSG § 3B1.1, comment. (n.4)).
C. USSG § 2D1.1(b)(1) Enhancement for Possession of a Dangerous Weapon
Section 2D1.1 authorizes a two-level enhancement to a drug-trafficking sentence “[i]f a dangerous weapon (including a firearm) was possessed” by the defendant. USSG § 2D1.1(b)(1). The weapon enhancement allowed by § 2D1.1(b)(1) “reflects the increased danger of violence when drug traffickers possess weapons.” USSG § 2D1.1, comment. (n.3). “‘The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.‘” United States v. Braggs, 317 F.3d 901, 905 (8th Cir. 2003) (quoting USSG § 2D1.1 comment. (n.3)). “The government has the burden to show by a preponderance of the evidence both that the weapon was possessed by the defendant and that it was not clearly improbable that the weapon was connected with the offense.” United States v. Harris, 310 F.3d 1105, 1112 (8th Cir. 2002), cert. denied, 123 S. Ct. 2121 (2003).
The government contends that two different weapons sustain the court‘s finding that a weapon was possessed in relation to the conspiracy: Dobbs’ shotgun that he carried in his truck and the 9 mm rifle held by one of the group of men who Mendoza told TFO Horton would take care of him if something went wrong. Mendoza argues that there was no evidence that he ever possessed a weapon or that Dobbs’ shotgun
Mendoza‘s argument that he did not personally possess a firearm is unavailing. Constructive possession suffices “if it is reasonably foreseeable that a co-conspirator would have possessed a weapon.” Braggs, 317 F.3d at 904; see also United States v. Atkins, 250 F.3d 1203, 1214 (8th Cir. 2001) (affirming enhancement where defendant was present in co-conspirator‘s vehicle where gun was found). Both weapons were used for Mendoza‘s protection and were sufficiently connected to Mendoza‘s drug trafficking to support the enhancement. Dobbs testified that he was hired to watch Mendoza‘s back, and Dobbs drove Mendoza around in his truck with the shotgun visible in the cab of the truck. Further, Mendoza told TFO Horton that the man holding the rifle was watching the transaction and would take care of him if anything happened. The court‘s finding that the weapons were used for Mendoza‘s protection is not clearly erroneous. See Braggs, 317 F.3d at 904 (holding that enhancement was appropriate where evidence supported inference that co-conspirator, who admitted throwing gun from vehicle in which defendant was arrested, was providing protection for defendant). Although TFO Horton testified that he thought the rifle was an air rifle, Mendoza told Horton that it was a 9mm rifle. The district court‘s conclusion that the rifle was a dangerous weapon is not clearly erroneous. These facts sufficiently tie both weapons to the drug trafficking crimes Mendoza was found guilty of committing and support the two-level enhancement for possession of a dangerous weapon.
III. Clinton
Clinton argues on appeal that his sentence for the
A defendant‘s right to appeal his conviction or sentence is purely a statutory right. “It is well settled that a procedural right, whether constitutionally derived or grounded in statute, may be waived by a criminal defendant.” United States v. Michelsen, 141 F.3d 867, 871 (8th Cir.), cert. denied, 525 U.S. 942 (1998). Appeal waivers are important tools in the plea bargaining process because they “preserve the finality of judgments and sentences, and are of value to the accused to gain concessions from the government.” DeRoo v. United States, 223 F.3d 919, 923 (8th Cir. 2000). Accordingly, appeal waivers are generally binding and we will not review a waived issue unless the plea agreement was not entered knowingly and voluntarily. See id.; Michelsen, 141 F.3d at 871-72.
Before accepting Clinton‘s guilty plea, the court expressly addressed Clinton‘s understanding that he was giving up his right to appeal all issues other than sentencing issues not agreed upon or specifically addressed in the plea agreement. (Plea. Tr. at 9.) Clinton does not argue, and we find no indication, that Clinton entered the plea agreement other than knowingly and voluntarily. Clinton‘s argument on appeal does not raise a sentencing issue that was reserved in the plea agreement. Rather, the only issue raised is an attack on the factual basis that supports his guilty
IV.
We affirm the judgment of the district court with respect to Mendoza‘s convictions and sentences, and we dismiss Clinton‘s appeal.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.