                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                August 19, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 09-8012
                                              (D.C. No. 2:08-CR-00019-ABJ-2)
    PAULINO SANCHEZ-CHAPARRO,                             (D. Wyo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before HOLMES, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.



         Paulino Sanchez-Chaparro appeals his drug-trafficking conviction and

sentence. We have jurisdiction under 28 U.S.C. § 1291. Because the district

court did not err in refusing to suppress evidence seized from a vehicle defendant

was driving, in refusing to suppress his incriminating statements, in concluding




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
that there was sufficient evidence to convict him of conspiracy to distribute

cocaine and methamphetamine, or in sentencing him, we AFFIRM.

I.    BACKGROUND

      Defendant lived near his brother, Leonardo Sanchez, in Cheyenne,

Wyoming. Leonardo’s girlfriend was Rocio Orozco. On November 20, 2007,

Orozco complained to police that Leonardo had assaulted her. She also informed

them that Leonardo and defendant were involved in selling cocaine and

methamphetamine. That evening, officers conducted surveillance on Leonardo’s

apartment and attempted to corroborate the drug-trafficking information. Among

other information, Orozco had told them that defendant drove Leonardo to

conduct drug business in various vehicles, including a gold Impala. While the

officers were watching the apartment, a Hispanic male arrived in a gold Impala.

The unidentified man (who turned out to be defendant) and Leonardo visited a

Wal-Mart. After returning Leonardo to his apartment, the gold Impala drove to

the area of a trailer park where defendant lived. Checking the records on the

Impala, officers found it was registered to defendant’s wife.

      Ultimately, officers obtained a search warrant for the apartment. When

they executed the warrant early in the morning on November 21, they seized

226.3 grams of cocaine, scales, ledgers, packaging material, and other drug

paraphernalia, as well as two pistols and an assault rifle.




                                         -2-
      After the search of Leonardo’s apartment, Lieutenant Robert Korber of the

Cheyenne Police Department went to defendant’s home to set up surveillance.

The gold Impala was there, with some snow covering it. There also was a Ford

Ranger pick-up truck, which Korber had seen parked there when he drove past the

trailer the previous night, and an Escalade. Because the vehicles were there,

Korber believed defendant was in the trailer. He began surveillance, though it

was complicated by the distance he had to maintain to remain undetected. After

he erroneously stopped a vehicle whose occupants turned out to be defendant’s

neighbors, he requested assistance. Detectives Thomas Garrison and Thomas

Hood responded.

      Garrison and Hood were able to position themselves in two locations with

direct lines of sight to the trailer’s door. People came and went from the trailer;

the detectives’ instructions were to stop vehicles containing persons who left the

trailer but who had not been observed entering it. After about 60 to 90 minutes of

surveillance, both Garrison and Hood saw two previously unseen Hispanic males

leave the trailer. Hood advised Korber that he saw the men drive away in the

Ranger. Garrison followed the Ranger, and Korber directed Garrison to stop it

and identify the occupants. Garrison complied, determining that defendant was

the driver, and a man identified as Pelón was the passenger. The conversation




                                          -3-
was in English. 1 Korber directed Garrison to transport defendant and Pelón to the

police station for questioning. Defendant consented to being taken to the station.

Police later searched the Ranger, seizing cell phones containing incriminating

evidence.

      At the station, reading from a waiver form written in English, Korber

informed defendant of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436

(1966). Korber believed that defendant understood his rights, as defendant

responded to him in English. When Korber felt that there might be some

confusion, Michael Nallin of the Bureau of Alcohol, Tobacco, and Firearms, who

speaks rudimentary Spanish, asked defendant in Spanish if he understood.

Defendant said he understood and signed the waiver form. Initially the interview

was in English, but at some point, Korber and Nallin requested translation by a

Spanish-speaking officer. That officer translated the latter part of the interview.

Defendant made incriminating admissions during the interview.

      Defendant moved to suppress his statements, contending that his waiver of

his Miranda rights was not knowing and voluntary because he did not understand

enough English to comprehend the warnings. Defendant also moved to suppress

the cell phones seized from the Ranger on the ground that the stop violated Terry

v. Ohio, 392 U.S. 1 (1968). The district court denied both motions.



1
      A recording of part of the traffic stop is in the record on appeal.

                                         -4-
      Ultimately, defendant pleaded guilty to illegally entering the United States

(count 8). The jury found him guilty of conspiracy to possess with intent to

distribute, and to distribute cocaine and methamphetamine (count 1), possession

with intent to distribute cocaine and aiding and abetting (count 2), and being an

illegal alien in possession of a firearm (count 4). The jury also found that counts

1 and 2 involved 226.3 grams of cocaine and 680.4 grams of methamphetamine.

At sentencing, the district court increased defendant’s base offense level by four

levels under Sentencing Guideline § 3B1.1(a) (leader/organizer enhancement) and

by two levels under Sentencing Guideline § 3C1.1 (obstruction-of-justice

enhancement), resulting in an advisory Guidelines range of 324 to 405 months.

The district court then reviewed other recent Wyoming drug-distribution cases

and concluded that 240 months was the most appropriate sentence. Accordingly,

it varied downward by three levels so that the advisory Guidelines range would

encompass 240 months. It then sentenced defendant to two concurrent terms of

240 months’ imprisonment on counts 1 and 2, with lesser concurrent sentences for

counts 4 and 8. Defendant appeals.

II.   ANALYSIS

      Defendant raises five arguments. The first two concern the district court’s

denial of his motions to suppress evidence, the third concerns the sufficiency of

evidence of conspiracy to distribute methamphetamine, and the fourth and fifth

arise from the calculation of his sentence.

                                         -5-
      A.     Suppression of Evidence

             1.     Evidence from the Ranger

      The district court refused to suppress the evidence recovered from the Ford

Ranger, holding that the officers had reasonable suspicion that defendant was one

of the occupants of the truck and probable cause to arrest him. Defendant

contends that the district court erred because the officer stopped the truck “not on

a particularized and objective basis,” but instead on a “mere hunch.” Aplt. Br. at

10 (quotation omitted). 2

      “In assessing a denial of a motion to suppress, this court accepts the factual

findings of the district court, and its determination of witness credibility, unless

they are clearly erroneous.” United States v. Chavez, 534 F.3d 1338, 1343

(10th Cir. 2008) (alteration and quotation omitted). “Ultimately, however, this

court must review de novo the reasonableness of the government’s action under

the Fourth Amendment.” Id. It is the government’s burden to prove

reasonableness, but we view the evidence in the light most favorable to the

government. See id.

      “[T]he principles set forth in Terry v. Ohio . . . guide this court’s analysis

of the reasonableness of the traffic stop. Thus, we examine whether the traffic

stop was (1) justified at its inception and (2) reasonably related in scope to the


2
       In his reply brief, defendant clarifies that he challenges only the traffic
stop, not his arrest.

                                          -6-
circumstances which justified the interference in the first place.” Id. (citation

omitted). Defendant challenges only the first of these factors. To justify “the

particular intrusion the police officer must be able to point to specific and

articulable facts which, taken together with rational inferences from those facts,

reasonably warrant that intrusion.” Terry, 392 U.S. at 21. But a police officer

may not rely on “his inchoate and unparticularized suspicion or hunch.” Id. at 27.

“The conduct of the officers is judged by an objective standard taking the totality

of the circumstances and information available to the officers into account.”

United States v. Lang, 81 F.3d 955, 965 (10th Cir. 1996).

      The stop of the Ranger was justified at its inception because the police had

probable cause to arrest defendant and a reasonable suspicion that he was an

occupant of the truck. Orozco had reported that defendant and Leonardo were

involved with drug-trafficking, and officers had corroborated much of Orozco’s

information (including the seizure of more than 200 grams of cocaine from

Leonardo’s apartment). They knew defendant’s gender, ethnicity, and address.

Orozco had stated that defendant drove Leonardo in a gold Impala, and the night

of November 20, they had followed a Hispanic male driving a gold Impala (which

was registered to defendant’s wife) from Leonardo’s apartment to the Wal-Mart

and back, and then to the area of the trailer park where defendant lived.

      The next morning, the Impala and two other vehicles (including the Ford

Ranger that Korber had seen there the previous night) were at the trailer. This

                                          -7-
information allowed the officers to form a reasonable belief that defendant was in

the trailer. Further, in contrast to the several persons who visited for short

periods of time (and who were not stopped), defendant and Pelón had not been

seen entering the trailer during the surveillance. Defendant’s reliance on the stop

of his neighbors to show that the officers’ surveillance was unfocused and inexact

is unpersuasive. Korber testified at the suppression hearing that he could not get

too close to the trailer, and he only saw the vehicle that he initially stopped as it

left the trailer park. But after the erroneous stop, he asked for additional officers

to assist. Both Hood and Garrison actually saw defendant and Pelón leave the

trailer, and Hood saw them drive away in the Ranger.

      Under the totality of the circumstances, there was sufficient justification for

Garrison, acting under Korber’s instructions, to stop the Ranger. See id. at

965-66 (upholding stop of vehicle where officers reasonably suspected person of

criminal activity and believed he was in the vehicle); see also Chavez, 534 F.3d at

1344-48 (holding that officer was objectively justified in making traffic stop

where he acted on the strength of other officers’ information of drug-trafficking

by passenger). In short, the district court did not err in denying the motion to

suppress the evidence from the Ranger.

             2. Incriminating Admissions

      The district court concluded that defendant understood enough English to

make a knowing and voluntary waiver of his Miranda rights. Defendant contends

                                           -8-
that the court erred in evaluating his ability to understand English and, therefore,

that the waiver was not knowing and intelligent. “The validity of a defendant’s

waiver of his or her Fifth Amendment rights is reviewed de novo with the

underlying facts reviewed under the clearly erroneous standard.” United States v.

Morris, 287 F.3d 985, 988 (10th Cir. 2002).

      A waiver of Miranda rights must be made “voluntarily, knowingly, and

intelligently.” Miranda, 384 U.S. at 444. “‘[T]he relinquishment of the right

must have been voluntary in the sense that it was the product of a free and

deliberate choice rather than intimidation, coercion, or deception.” Moran v.

Burbine, 475 U.S. 412, 421 (1986). And “the waiver must have been made with a

full awareness of both the nature of the right being abandoned and the

consequences of the decision to abandon it.” Id. Defendant does not challenge

voluntariness, instead focusing on the court’s finding regarding his English

proficiency and the conclusion that the waiver was knowing and intelligent.

“Whether [defendant] understood his Miranda rights is a question of fact, which

underlies the legal question of whether his waiver was knowing and intelligent.”

Valdez v. Ward, 219 F.3d 1222, 1231 (10th Cir. 2000) (citations omitted).

      Having independently reviewed the record, including the recording of the

traffic stop, we cannot conclude that the district court clearly erred in finding that

defendant understood sufficient English to understand the Miranda warnings.

Defendant generally responded appropriately to Garrison’s questioning during the

                                          -9-
traffic stop. He asked Garrison if there would be a Spanish-speaker at the station,

and was told that there would, but he never asked for a translator when he was at

the station. When it appeared that defendant might be having some difficulty

understanding the warnings given at the station, Nallin asked him in Spanish if he

understood, and he responded that he did. Further, defendant conversed with

officers in English during a search of his trailer. These facts support the district

court’s finding. See id. (defendant appropriately responded to questioning);

United States v. Lugo, 170 F.3d 996, 1004 (10th Cir. 1999) (“Although it would

have been preferable to give [defendant] a Miranda warning in Spanish, the

record indicates that [defendant] indicated to [the officer] that he understood

those rights as they were being read to him in English, and responded to all

questions in English.”); United States v. Toro-Pelaez, 107 F.3d 819, 826

(10th Cir. 1997) (defendant spoke to troopers in English). Accordingly, the

district court did not err in concluding that defendant’s waiver of his Miranda

rights was knowing and intelligent.

      B.     Sufficiency of the Evidence

      Count 1 of the indictment charged defendant with conspiracy to possess

with intent to distribute, and to distribute, methamphetamine and cocaine. In

finding defendant guilty on this count, the jury also found that the offense

involved 680.4 grams of methamphetamine. The court calculated defendant’s

sentence based on that finding. Defendant concedes that there was sufficient

                                         -10-
evidence of his involvement in a conspiracy to distribute cocaine. He argues,

however, that (1) there was insufficient evidence to conclude that he conspired to

distribute methamphetamine, and (2) there was insufficient evidence to support

the jury’s precise finding of 680.4 grams of methamphetamine. The standard of

review is de novo, with the evidence viewed in the light most favorable to the

government. United States v. Curtis, 344 F.3d 1057, 1069-70 (10th Cir. 2003).

“Furthermore, our review is deferential to the jury’s fact-finding, and we must

sustain [defendant’s] conviction if any rational juror could have found him

guilty.” United States v. Cardinas Garcia, 596 F.3d 788, 794 (10th Cir.), cert.

denied, 130 S. Ct. 3299 (2010).

      “In order to obtain a conspiracy conviction the government must show

[1] that two or more persons 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

coconspirators were interdependent.” United States v. Flores, 149 F.3d 1272,

1277 (10th Cir. 1998) (alteration and quotation omitted). The record contains

evidence of defendant’s involvement in a conspiracy involving methamphetamine

as well as cocaine.

      An officer testified that defendant told police that he knew Leonardo was

involved with drugs. Defendant admitted at trial that he helped Leonardo get

certain cell phones, which the evidence showed were used in connection with

                                         -11-
selling methamphetamine and cocaine. Defendant, Leonardo, and Pelón together

rented Leonardo’s apartment, from which Leonardo sold both cocaine and

methamphetamine. Leonardo and defendant did all the talking with the landlord,

but put the rental under Pelón’s name. Defendant paid the deposit on the

apartment—$800 in cash out of the $1,200 he had in his pocket.

      Orozco testified that the methamphetamine business was Leonardo’s, while

the cocaine business was defendant’s, but she also testified that defendant visited

the apartment almost every day and that he would drive Leonardo around town.

She stated that Leonardo acknowledged owing defendant money, even though

Leonardo never handled any money for the cocaine transactions. She never saw

Leonardo give defendant money—but Leonardo would have a large amount of

cash from methamphetamine sales, then defendant would visit the apartment, and

after the visit, Leonardo would have no cash. Another conspirator, Jordan Ivey,

testified that she was giving Leonardo $1,000 a day for methamphetamine, but

Leonardo never had any large amounts of money.

      Finally, on November 20, 2007, the police trailed defendant’s gold Impala

from Leonardo’s apartment to a Wal-Mart store. Another witness (the sister of a

conspirator) described how her sister asked her to meet the Sanchez brothers that

night at the Wal-Mart. The sister and an ex-boyfriend asked the witness to sign

for a $1,100 money order at the Wal-Mart and give the brothers the money. Ivey

confirmed that the money order represented proceeds from methamphetamine

                                        -12-
sales. Viewing all of this evidence in the light most favorable to the government,

as we must, we conclude that the evidence was sufficient to support the

conviction on Count 1.

      We also conclude that there was sufficient evidence for the jury to assess

the amount of methamphetamine at 680.4 grams. Contrary to defendant’s

argument, the number was not simply “made up,” Aplt. Br. at 26. At 16 ounces

per pound, and 28.35 grams to the ounce (rounded up slightly from the most

precise figure, which stretches several places to the right of the decimal), 680.4

grams is one and one-half pounds of methamphetamine. Orozco testified that she

accompanied Leonardo to purchase methamphetamine on two occasions. She

estimated the amount of methamphetamine she transported for him on the first

occasion to be about a half-pound, and she estimated that he had twice that

amount on the second occasion. Although defendant argues that her estimates

were vague, it was the jury’s job to weigh her credibility and determine whether

they believed her. See Cardinas Garcia, 596 F.3d at 794 (“We accept at face

value the jury’s credibility determinations and its balancing of conflicting

evidence.”).

      C.       Sentencing Issues

               1.   Leader/Organizer Enhancement

      Defendant opposes the court’s addition of four levels under Sentencing

Guideline § 3B1.1(a), the enhancement for being a “leader or organizer of a

                                         -13-
criminal activity that involved five or more participants or was otherwise

extensive.” He contends that the district court did not identify five persons who

could properly be counted as “participants.” He concedes that he failed to present

this argument to the district court, instead opposing the § 3B1.1(a) enhancement

on a different ground. Thus, our review is only for plain error. See United States

v. Simpson, 152 F.3d 1241, 1250 (10th Cir. 1998) (stating that an objection on

different grounds in the district court results in plain-error review). “Plain error

occurs when there is (1) error, (2) that is plain, which (3) affects substantial

rights, and which (4) seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” United States v. Hinson, 585 F.3d 1328, 1333 (10th Cir.

2009), cert. denied, 130 S. Ct. 1910 (2010) (quotation omitted).

      The Sentencing Commission has defined “participant” as “a person who is

criminally responsible for the commission of the offense, but need not have been

convicted.” USSG § 3B1.1, comment. (n.1). As defendant concedes, he counts as

a participant. See United States v. Reid, 911 F.2d 1456, 1464 (10th Cir. 1990),

abrogation on other grounds recognized by United States v. Cruz Camacho,

137 F.3d 1220, 1224 n.3 (10th Cir. 1998). The district court identified five

persons besides defendant as potential “participants.” Defendant does not object

to counting three of them (Leonardo, Ivey, and Miston Compton). Including

defendant, then, there are four undisputed “participants.” But he complains that




                                          -14-
the remaining two persons (Andy Speck and Howard Knauer) were, at most,

customers of the drug ring and thus not properly counted.

      In light of the testimony that Speck distributed cocaine to others, it is not

clear that Speck was a mere buyer, as defendant suggests. But even if counting

Speck could be considered an error, defendant has not shown that his substantial

rights were affected or that any error seriously affects the fairness of the

proceeding. The evidence at trial implicated others in the drug-distribution

scheme, including Pelón and Orozco. Thus, even not counting Speck, there were

sufficient “participants” to allow the § 3B1.1(a) enhancement, and no plain error.

See United States v. Uscanga-Mora, 562 F.3d 1289, 1295 (10th Cir.) (holding that

where “the district court’s sentencing decision was amply supported by [the]

evidence” and “[t]he defendant thus received a sentence merited by the evidence,”

the defendant could not show the error affected his substantial rights), cert.

denied, 130 S. Ct. 289 (2009).

             2.     Obstruction-of-Justice Enhancement

      After finding that defendant perjured himself in testifying at trial, the

district court added two levels for obstruction of justice under Guideline § 3C1.1.

See USSG § 3C1.1, comment. (n.4(b)) (stating that committing perjury is within

the conduct addressed by § 3C1.1). Defendant argues that the district court failed

to make the findings required to support the perjury determination. This issue




                                         -15-
also is reviewed for plain error, since he did not raise any objection at sentencing.

See Uscanga-Mora, 562 F.3d at 1293.

      A sentencing enhancement for perjury is appropriate only when a defendant

“gives false testimony concerning a material matter with the willful intent to

provide false testimony, rather than as a result of confusion, mistake, or faulty

memory.” United States v. Dunnigan, 507 U.S. 87, 94 (1993). Accordingly, “if a

defendant objects to a sentence enhancement resulting from her trial testimony, a

district court must review the evidence and make independent findings necessary

to establish a willful impediment to or obstruction of justice, or an attempt to do

the same, under the perjury definition.” Id. at 95. This court “require[s] that a

district court be explicit about which representations by the defendant constitute

perjury. . . . [I]t has long been a requirement in the Tenth Circuit that the

perjurious statement be identified, at least in substance.” United States v.

Hawthorne, 316 F.3d 1140, 1146 (10th Cir. 2003) (quotation and citation

omitted).

      The district court’s § 3C1.1 findings stated:

              Defendant denied any connection with this conspiracy; it was
      all an unfortunate mistake perpetrated upon a hardworking individual
      by his dissolute brother and a group of police officers who had
      decided to violate their oath and their careers in favor of bringing to
      this court a pack of lies. Frankly an incredible position for him to
      take . . . . Clearly, this defendant was an able, not drug addicted, not
      scattered, focused person engaged in the business of distribution of
      these substances.


                                          -16-
Amended Record on Appeal, Vol. 3 (Sentencing Transcript) at 328-29.

       This court has held that

       [t]he district court may generally identify the testimony at issue from
       his or her trial notes or memory and it is sufficient if such testimony
       is merely described in substance so that when we review the
       transcript we can evaluate the Dunnigan findings of the elements of
       perjury against an identified line of questions and answers without
       having simply to speculate on what the district court might have
       believed was the perjurious testimony.

United States v. Massey, 48 F.3d 1560, 1574 (10th Cir. 1995). The district

court’s finding on the point may not be ideal, but it satisfies this standard. The

court’s general descriptions correlate to particular parts of the transcript of

defendant’s testimony that are identifiable on review. There was no plain error in

assessing the two-point enhancement for perjury.

III.   CONCLUSION

       The judgment of the district court is AFFIRMED.


                                                      Entered for the Court



                                                      David M. Ebel
                                                      Circuit Judge




                                          -17-
