                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                   No. 12-2116
                                  _____________

                         UNITED STATES OF AMERICA

                                          v.

                      ALEXANDER RIVERA, a/k/a “REDS”,

                                                             Appellant



                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                      (District Court No. 2-10-cr-00716-001)
                     District Judge: Honorable Juan R. Sanchez



                     Submitted under Third Circuit LAR 34.1(a)
                                 on May 22, 2013

                                (Filed: July 26, 2013)


           Before: RENDELL and GREENAWAY, JR., Circuit Judges, and
                        ROSENTHAL, District Judge.*




      ∗
       Honorable Lee H. Rosenthal, Judge of the United States District Court for the
Southern District of Texas, sitting by designation.
                                       OPINION


RENDELL, Circuit Judge:


       Alexander Rivera appeals his judgments of conviction and sentence for conspiracy

to distribute cocaine, cocaine base, PCP, and heroin, and related drug and firearm

offenses. Rivera claims error on three grounds: (1) the improper admission at trial of

evidence obtained through electronic surveillance, (2) insufficient evidence to support the

jury’s verdict, and (3) the unreasonableness of his sentence. We will affirm.

                                               I.

       This case follows a multi-year drug trafficking investigation conducted by federal

and local law enforcement in the Kensington neighborhood of Philadelphia,

Pennsylvania. The investigation relied upon confidential informants, physical and

electronic surveillance, and other investigative methods to gather information about a

drug trafficking organization and its distribution and selling activities. The electronic

surveillance included a wiretap of communications to and from Rivera’s cell phone, as

authorized by a July 6, 2010 warrant. The investigation also involved the September 7,

2010 execution of search warrants at five locations used by the organization, uncovering

numerous guns and ammunition, drug packaging paraphernalia, and large quantities of

cash and several types of illegal narcotics.

       The investigation resulted in indictments charging Rivera and numerous co-

defendants with various drug distribution conspiracy and substantive offenses in the

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United States District Court for the Eastern District of Pennsylvania. Many of the co-

defendants pled guilty and agreed to cooperate as witnesses.

       Rivera proceeded to a jury trial. The Government’s case centered around the

evidence gathered during the course of the drug trafficking investigation, which showed

that Rivera led and controlled drug distribution activity through a network of distributors

and street-level sellers and by permitting other dealers to make rental payments for the

right to sell at certain locations controlled by his organization. On November 28, 2011,

the jury convicted Rivera of all twelve counts against him. Following his conviction, the

District Court sentenced Rivera to life imprisonment, plus a 60-month consecutive term

of imprisonment for possession of a firearm in furtherance of a drug trafficking crime,

and imposed an eight-year term of supervised release, a fine, and a special assessment.

Rivera timely appealed. 1

                                             II.

       Rivera argues that the wiretap evidence of his cell phone communications was

subject to exclusion at trial because the affidavit in support of the wiretap did not

establish the necessity for the wiretap as required by 18 U.S.C. § 2518(1)(c) and

§ 2518(3)(c). We disagree. 2




1
  The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has jurisdiction
over this appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
2
  This Court reviews de novo whether a full and complete statement has been made
substantiating the need for the wiretap, and reviews for abuse of discretion the District
Court’s determination of necessity. See United States v. Phillips, 959 F.2d 1187, 1189
(3d Cir. 1992).
                                              3
       The affidavit stated “whether or not other investigative procedures ha[d] been tried

and failed or why they reasonably appear[ed] to be unlikely to succeed if tried or to be

too dangerous,” 18 U.S.C. § 2518(1)(c), and those conditions were sufficiently

demonstrated, id. § 2518(3)(c). The affidavit reflected that, despite employing several

traditional investigative methods during the course of the investigation, including the use

of informants, cooperating defendants, physical surveillance, and the use of pen register

and telephone toll records, investigators of the drug trafficking organization were unable

to obtain certain vital information about the conspiracy such as its scope and the precise

roles of all co-conspirators involved. The affidavit also demonstrated that the use of

undercover agents was too dangerous and that the execution of a search warrant would

have prompted the suspension of distribution activities and impeded collecting evidence.

Furthermore, the utility of other methods of investigation to obtain some information

does not foreclose the possibility that a wiretap is necessary to obtain other information.

See United States v. Williams, 124 F.3d 411, 418 (3d Cir. 1997) (“18 U.S.C. § 2518(3)(c)

does not require the government to exhaust all other investigative procedures before

resorting to electronic surveillance.”). We conclude that the District Court did not abuse

its discretion in admitting this evidence at trial.

                                               III.

       Rivera claims that the District Court erred in denying his motion for judgment of

acquittal on the grounds of evidence insufficiency. He primarily contends that the

uncorroborated testimony of cooperating witnesses is insufficient to support a conspiracy

conviction, and that evidence of his mere knowledge of illegal activity alone does not

                                                4
establish he joined the conspiracy. See Appellant Br. at 16. With respect to the

substantive drug offenses, he argues insufficiency of the evidence on the grounds that

there was a lack of direct evidence showing that during the specific sales in question he

sold, was present, or participated in the distribution. See id. at 16-18. Similarly, he

claims the evidence did not demonstrate he had control or constructive control of a

firearm to support his firearm conviction. See id. at 21-22. Because Rivera did not raise

these specific arguments before the District Court, he concedes that plain error review

applies. See id. at 18. We conclude that the District Court committed no error.

       Contrary to Rivera’s contention otherwise, there was sufficient evidence to

support his conspiracy conviction. At trial, the accomplice testimony establishing that

Rivera was a conspirator was corroborated through the consistent testimony of multiple

witness-accomplices, wiretap evidence, and evidence obtained pursuant to search

warrants at various properties used by Rivera. Furthermore, even if any accomplice

testimony was uncorroborated, such “‘testimony may constitutionally provide the

exclusive basis for a criminal conviction’ . . . particularly [when] the defense has ample

opportunity to cross-examine the Government’s witnesses.” United States v. Perez, 280

F.3d 318, 344 (3d. Cir. 2002) (quoting United States v. DeLarosa, 450 F.2d 1057, 1060

(3d Cir. 1971)).

       Likewise, the record reflects that there was sufficient evidence of the substantive

offenses to support the jury’s verdict. The evidence of the drug offenses was in the form

of testimony from a cooperating witness testifying that he purchased crack directly from

Rivera (Count 3), as well as circumstantial evidence of Rivera’s participation in or

                                              5
association with the drug sales (Counts 2-4, 10-11, and 15-19). See United States v.

Mercado, 610 F.3d 841, 846 (3d Cir. 2010) (“An aiding and abetting conviction can be

supported solely with circumstantial evidence as long as there is a logical and convincing

connection between the facts established and the conclusion inferred.” (internal quotation

marks omitted)). As to Rivera’s firearm conviction, the various weapons, magazines,

ammunition, and drugs recovered by investigators executing a search warrant at the

garage behind 3439 F Street, in conjunction with several witnesses’ testimony that Rivera

personally stored firearms and drugs at that location, were sufficient to show his control

or constructive control of the weapons. United States v. Benjamin, 711 F.3d 371, 376 (3d

Cir. 2013) (“Constructive possession occurs when ‘[a] person who, although not in actual

possession, knowingly has both the power and the intention at a given time to exercise

dominion or control over a thing, either directly or through another person or persons.’”

(emphasis omitted) (quoting United States v. Garth, 188 F.3d 99, 112 (3d Cir. 1999)).

       In light of these considerations, and having viewed the evidence in the light most

favorable to the Government, we conclude a rational trier of fact could have found

beyond a reasonable doubt the essential elements of the drug distribution conspiracy and

related drug and firearm offenses for which the jury convicted Rivera. See United States

v. Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996) (“If any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt, then the verdict of the jury

must be sustained.” (citation omitted) (internal quotation marks omitted)). It follows that

we cannot say that the District Court has committed plain error in denying Rivera’s

motion for judgment of acquittal.

                                             6
                                            IV.

        Rivera also challenges the reasonableness of his sentence on five grounds. We

conclude that none provide reason to disturb the District Court’s sentence.

        First, Rivera argues that the mandatory minimum provision of 21 U.S.C.

§ 841(b)(1)(A) and § 851, under which he received a mandatory sentence of life

imprisonment based upon his two prior felony drug convictions, is unconstitutional on its

face and as applied to him. However, his argument is squarely rebutted by Almendarez-

Torres v. United States, 523 U.S. 224 (1998), which upheld the constitutionality of the

recidivism provision on the basis that prior judgments of conviction are not elements of

the offense that must be submitted to a jury and proved beyond a reasonable doubt.

Notwithstanding any existing criticism of Almendarez-Torres, this Court is bound by this

precedent unless it is overturned, and we have recently discussed the continued vitality of

Almendarez-Torres. See Garrus v. Sec’y of Pa. Dep’t of Corr., 694 F.3d 394, 401-03 (3d

Cir. 2012) (en banc). Accordingly, Rivera’s argument does not provide a basis for

reversal. 3

        Second, Rivera urges that the District Court should not have applied the

mandatory minimum sentence of life imprisonment under 21 U.S.C. § 841(b)(1)(A)

because his two prior convictions, arising from separate arrests occurring over a year

apart, were consolidated for sentencing. This argument, however, is contrary to the plain

3
  Because Almendarez-Torres squarely addresses the issue raised by Rivera with respect
to his prior felony drug convictions, his arguments concerning Harris v. United States,
536 U.S. 545 (2002), overruled by Alleyne v. United States, 133 S. Ct. 2151 (2013), are
inapplicable here. See also Alleyne, 133 S. Ct. at 2160 n.1 (acknowledging that
Almendarez-Torres is undisturbed by the overruling of Harris).
                                             7
language of the statute, which provides for mandatory life imprisonment when the

defendant has “two or more prior convictions for a felony drug offense.” 21 U.S.C.

§ 841(b)(1)(A) (emphasis added). The statute does not provide any exception for treating

two convictions for which concurrent or consolidated sentences were imposed as

anything other than two separate convictions. See United States v. Harris, 369 F.3d

1157, 1168 (10th Cir. 2004) (“The plain language of § 841(b)(1)(A) only requires the

existence of ‘two or more prior convictions for a felony drug offense,’ and there is no

exception for cases . . . where concurrent sentences were imposed for two or more

separate drug convictions.”); cf. United States v. Randolph, 364 F.3d 118, 124 (3d Cir.

2004) (observing that several circuits have recognized that “under this section

[§ 841(b)(1)(A)], multiple counts of a single indictment constitute separate convictions,

as long as they arise from separate and distinct criminal episodes”).

       Third, Rivera similarly argues that because his prior convictions were consolidated

for sentencing, the District Court abused its discretion in classifying him as a career

offender under U.S.S.G. § 4B1.1 (2009) by considering the prior convictions as separate.

See Appellant Br. at 27. We disagree. “[T]he imposition of sentences for multiple

offenses at the same time by the same judge does not render the cases ‘consolidated for

sentencing,’ and, therefore, related within the meaning of [U.S.S.G.] § 4A1.2(a)(2), in the

absence of either a formal consolidation order or a close factual relationship between the

offenses.” United States v. Wood, 526 F.3d 82, 87 (3d Cir. 2008). Because Rivera’s

convictions arose from separate incidents and arrests, Rivera’s prior convictions are not



                                              8
related within the meaning of U.S.S.G. § 4A1.2(a)(2), and there was no abuse of

discretion in classifying him as a career offender.

       Fourth, Rivera contends that the District Court erred in applying the four-level

enhancement for his role as the leader of the conspiracy under U.S.S.G. § 3B1.1(a). See

Appellant Br. at 27. We conclude this claim fails due to the substantial testimony and

other evidence establishing his leadership role, including multiple recorded telephone

conversations obtained through the wiretap and multiple witnesses’ testimony that they

worked for and were supervised by Rivera.

       Fifth, Rivera argues that the District Court abused its discretion by failing to

adequately consider the 18 U.S.C. § 3553(a) sentencing factors. See Appellant Br. at 29.

His argument, however, is contradicted by the sentencing record, which reflects that the

District Court examined the relevant factors under § 3553(a), articulating a thorough

analysis driven, in part, by the seriousness of Rivera’s offenses and criminal history. The

District Court also disagreed with Rivera’s argument that a lesser sentence would be

adequate. The Court reasoned that the sentence imposed would send a warning to the

community about the consequences of engaging in the distribution of illegal narcotics and

that his sentence would protect the community from the danger he poses. The District

Court also acknowledged that Rivera has young children, but noted that, in spite of his

prior drug convictions and his children, Rivera ignored the consequences and elected to

engage in the offensive conduct. Given our review of the Court’s consideration of the

§ 3553(a) factors, we discern no procedural error.



                                              9
                                           V.

      For the reasons set forth above, we will affirm the District Court’s judgment of

conviction and sentence against Rivera.




                                           10
