UNITED STATES of America, Plaintiff-Appellee, v. Rodolfo SUAREZ, Jr., Defendant-Appellant.
No. 10-10393.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 16, 2012. Filed June 22, 2012.
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OPINION
TASHIMA, Circuit Judge:
Defendant-Appellant Rodolfo Suarez appeals his conviction for conspiracy to distribute and to possess with intent to distribute methamphetamine in violation of
I. Background
In 2003, a felony complaint was filed against Suarez in California Superior Court, alleging that he committed two violations of the California Health and Safety Code: (1) felony possession of methamphetamine; and (2) the misdemeanor of being under the influence of methamphetamine. Suarez entered a plea of guilty and opted to participate in the
In 2009, a federal indictment was returned against Suarez and six co-defendants. Count One charged Suarez and his co-defendants with conspiracy to distribute and to possess with intent to distribute methamphetamine and cocaine. The indictment alleged that the conspiracy began no later than September 6, 2006 and continued until approximately April 17, 2008. Count Six charged Suarez and three co-defendants, including Eustorgio Flores,
On March 6, 2010, the government filed an information, as required by
In response, Suarez filed a motion to dismiss the information. He argued that the California felony possession charge did not qualify as a “prior conviction” that “has become final” under
Suarez, Flores, and their co-defendant Pioquinto Larios Santacruz proceeded to a jury trial. The government presented the testimony of Drug Enforcement Administration (“DEA“) Special Agent Todd Kuehnlein and a confidential source (“CS“), as well as 27 other witnesses. Agent Kuehnlein testified that the DEA began an investigation into Flores and Santacruz in 2007, based on information provided by the CS. Agent Kuehnlein testified that in April 2008, the CS arranged to buy cocaine and methamphetamine from Flores.
The DEA began wiretapping Flores’ telephone in January 2008. The government presented three recorded conversations between the CS and Suarez, all taped within a few days of April 17, 2008, in which Suarez told the CS that the “cardboard boxes” would be “showing up soon,” discussed the price of the “white box,” and gave the CS directions to the nursery where Suarez and Flores worked. Agent Kuehnlein testified that, based on his experience, Suarez had become a “pretty big player” in the drug transaction at that point. On appeal, Suarez challenges that testimony, arguing that in some of these conversations he was simply acting as a Spanish-to-English translator for Flores.
In a fourth recorded phone call, on April 17, 2008, Suarez told the CS that the five “windows” that the CS had ordered had arrived, but that the “styrofoam” was not ready. In a subsequent call made on the same day, Suarez explained to the CS that the pick-up location had changed, that the CS could follow Suarez and Flores to the new location, and that their supplier would “give [the CS] the windows and load them up, you know.” Kuehnlein testified at trial that “cardboard boxes” referred to drugs, “styrofoam” and “white box” were code words for cocaine, and “five windows” was code for five pounds of crystal methamphetamine.
Kuehnlein testified that he and the CS met Flores and Suarez at a Texaco station on April 17, 2008, and that the CS and Kuehnlein followed Suarez‘s car in their truck for about ten to fifteen minutes, until they reached a house in Farmersville. Agent Kuehnlein testified that Suarez drove erratically, changing speeds frequently, a technique Kuehnlein has seen used to detect law enforcement agents that may be following a car. Suarez dropped
Kuehnlein further testified that he interviewed Suarez on April 18, 2008, and that Suarez admitted that he had participated in two drug transactions: one in midsummer 2006, in which the CS had purchased four or five bags of crystal methamphetamine and cocaine, and the other on April 17, 2008. Suarez also told Kuehnlein that he knew that the April 17 transaction was for five kilograms of cocaine and five pounds of methamphetamine and that he expected payment for his involvement in the sale.
Suarez did not present any evidence at trial. The jury found Suarez guilty of the conspiracy charge in Count One with respect to the required amount of methamphetamine, but not with respect to the required amount of cocaine. The jury also found Suarez not guilty of the charge in Count Six, possession of methamphetamine with intent to distribute. In contrast, the jury found Flores guilty of both Counts One and Six.
Suarez filed a motion for a judgment of acquittal, contending that the jury had handed down impermissibly inconsistent verdicts and reasserting his argument that a twenty-year mandatory minimum sentence would not be appropriate given his participation in the California deferred judgment program. Suarez‘s Pre-Sentence Investigation Report recommended a sentence of 292 months. In response, Suarez filed a sentencing memorandum in which he again objected to the application of the twenty-year mandatory minimum under
II. Standard of Review
Where a defendant moved for acquittal before the district court, this court reviews de novo whether sufficient evidence exists to support a guilty verdict. United States v. Stewart, 420 F.3d 1007, 1014 (9th Cir. 2005). The same de novo standard of review applies to the legal determination of whether a defendant may upset a guilty verdict because it is inconsistent with an acquittal. United States v. Hart, 963 F.2d 1278, 1280 (9th Cir. 1992). The construction and interpretation of
III. Discussion
A. Inconsistent Verdicts
Suarez argues that his acquittal on the possession charge is “fatally inconsistent” with the jury‘s guilty verdict on the conspiracy charge because, he contends, the possession count was the only overt act on which a conviction for conspiracy could have been based. Suarez‘s challenge is without merit. We need not decide whether the verdicts were actually inconsistent, for it is well-established that “[i]nconsistent verdicts may stand, even when a conviction is rationally incompatible with an acquittal, provided there is sufficient evidence to support a guilty verdict.” United States v. Guzman, 849 F.2d 447, 448 (9th Cir. 1988) (quoting United States v. Birges, 723 F.2d 666, 673 (9th Cir. 1984)); see also United States v. Dota, 33 F.3d 1179, 1187 (9th Cir. 1994) (“Jury
The evidence that Suarez conspired to possess or to distribute methamphetamine is sufficient if, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found Suarez guilty beyond a reasonable doubt of the elements of the crime. See United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “This review should be independent of the jury‘s determination that evidence on another count was insufficient.” United States v. Powell, 469 U.S. 57, 67 (1984).
The evidence presented to the jury, viewed in the light most favorable to the government, was certainly sufficient for a rational trier of fact to find Suarez guilty of conspiracy to distribute methamphetamine. In order to prove a conspiracy under
Moreover, proof of an overt act in furtherance of the conspiracy is not required in order to prove a violation of
B. Section 841(b)(1)(A) Sentence Enhancement
The government argues in response that the Supreme Court‘s decision in Dickerson v. New Banner Institute, Inc., 460 U.S. 103 (1983), overruled by statute as stated in United States v. Brebner, 951 F.2d 1017, 1021 (9th Cir. 1991), controls this case. In Dickerson, the Court held that the term “conviction” under
The statute at issue in Dickerson (
Whether a conviction is “final” for purposes of a
This finality standard generally requires federal courts to look to state law in order to determine when the time for taking a direct appeal from the prior state conviction expires or has expired. See, e.g., id. at 824 (defendant‘s deferred entry of judgment became a final conviction thirty days after he was sentenced to probation, because that was the time provided for appeal under Georgia law); United States v. Vasquez, 298 F.3d 354, 359 (5th Cir. 2002) (defendant‘s deferred adjudication became a final conviction after thirty days, because Texas law allows thirty days to appeal from deferred adjudication). Thus, under prevailing case law, we would look to California‘s rules of appeal to determine at what point Suarez‘s prior conviction became “final” for federal sentencing purposes.
The circumstances of this case, however, have not been addressed in previous discussions of when a prior conviction becomes final under
Consequently, Suarez never had the right or opportunity to appeal his guilty plea pursuant to
Traditional aids in statutory interpretation do not provide much assistance in determining the meaning of the word “final” in this context. Legislative history is of little help in interpreting the exact contours of the phrase “has become final” in
In Ortega, the Eighth Circuit concluded that a Missouri suspended sentence qualified as a prior felony conviction which had become final within the meaning of
In Rivera-Rodriguez, a defendant argued that a prior Puerto Rican drug conviction was not “final” within the meaning of
We have recognized that the finality requirement in
In light of this background, we conclude that, in order to qualify as a final prior conviction under
First, as discussed above, Suarez‘s plea never became an appealable final judgment pursuant to California law. This supports the conclusion that, at the time he pled guilty, proceedings in California court were still ongoing and therefore not “final.” If Suarez had failed to complete his drug education program, only then would he have been formally adjudicated guilty; at that point, his conviction would have been “final” as defined in Williams. 651 F.2d at 649-51. That is not the case here.
Alternatively, Suarez‘s plea never resulted in a legally cognizable sentence, in that he was never placed on probation by the California court, nor was he sentenced to a term of imprisonment. Cf. Rivera-Rodriguez, 617 F.3d at 609 (holding that a defendant placed on eighteen-month probation under a rehabilitation program had suffered a final prior conviction); Ortega, 150 F.3d at 948 (holding that a defendant who was required to serve three years of supervised probation had suffered a final prior conviction). Instead, Suarez was not placed on probation, but was permitted by the California court to participate in a privately-run drug education program, which he then successfully completed. Suarez‘s plea therefore never took on either of the characteristics of a Dickerson “conviction“; consequently, there was no final prior conviction within the meaning of
In light of these considerations, we hold that, where a plea never ripens into either a final judgment or a legally cognizable sentence, there is no final prior conviction for purposes of
IV. Conclusion
For the foregoing reasons, we affirm Suarez‘s conviction for conspiracy to dis-
Conviction AFFIRMED; sentence VACATED and REMANDED.