                                                                                      FILED
                                                                          United States Court of Appeals
                        UNITED STATES COURT OF APPEALS                            Tenth Circuit

                              FOR THE TENTH CIRCUIT                              April 25, 2019
                          _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
    UNITED STATES OF AMERICA,

         Plaintiff - Appellee,

    v.                                                         No. 18-2008
                                                     (D.C. No. 1:14-CR-03758-JCH-2)
    GIOVANNI MONTIJO-DOMINGUEZ,                                  (D.N.M.)

         Defendant - Appellant.
                        _________________________________

    UNITED STATES OF AMERICA,

         Plaintiff - Appellee,

    v.                                                         No. 18-2036
                                                     (D.C. No. 1:14-CR-03758-JCH-1)
    LUIS MENDOZA-ALARCON,                                        (D.N.M.)

         Defendant - Appellant.
                        _________________________________

                              ORDER AND JUDGMENT*
                          _________________________________

Before MORITZ, KELLY, and EID, Circuit Judges.
                  _________________________________



*
 This panel previously 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 has therefore been 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   This order and judgment is not binding precedent, except under the doctrines of law of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.
       Defendants-Appellants Luis Mendoza-Alarcon and Giovanni Montijo-Dominguez

were convicted of conspiracy to possess with intent to distribute cocaine. 21 U.S.C.

§ 846. Mr. Mendoza was sentenced to 144 months’ imprisonment and five years’

supervised release; Mr. Montijo was sentenced to 120 months’ imprisonment and five

years’ supervised release. They now appeal from the district court’s denial of their

motions for judgment of acquittal, Fed. R. Crim. P. 29, and from the district court’s

refusal, upon the jury’s request, to clarify a jury instruction relating to the definition of a

criminal conspiracy.1 Separately, Mr. Montijo appeals from the district court’s finding

him ineligible to receive the “safety valve” under 18 U.S.C. § 3553(f) and the

corresponding Guideline reduction under U.S.S.G. § 5C1.2(a)(5) for a sentence below the

mandatory minimum.

       We consolidate their appeals for the purposes of this opinion in light of their

interrelated nature. Fed. R. App. P. 3(b)(2). Exercising jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a), we affirm.




1
  Although Mr. Montijo did not raise this latter claim in his opening brief, the Clerk of
the Court granted his request to join and adopt the Identified Issues in Mr. Mendoza’s
opening and reply briefs. Order, United States v. Montijo-Dominguez, No. 18-2008
(Nov. 15, 2018); Order, United States v. Montijo-Dominguez, No. 18-2008 (Jan. 4,
2019).

                                               2
                                        Background

        According to Mr. Mendoza, Lazaro Mendoza-Dominguez (“Lazaro”) asked him if

he would be interested in buying Lazaro’s house in Santa Fe, New Mexico. 3 R. 1367–

69; 1 Supp. R. Exs. H1, H2 & H3 (pp. 501–503).2 Mr. Mendoza expressed interest, but

their negotiations took a turn when Lazaro told Mr. Mendoza to expect a call from

persons who would give him instructions to purchase $250,000 worth of cocaine. 3 R.

1375–76, 1383. The caller would refer to “Sergio from Cuauhtemoc” and use code

words “paint” and “invoices.” Id. at 1376. Lazaro instructed Mr. Mendoza to deliver the

purchased narcotics to Lazaro’s garage at his home. Id. at 1378. Mr. Mendoza claims

Lazaro made clear that his compliance ensured Mr. Mendoza’s daughter in Mexico

would not be kidnapped or tortured. Id. at 1375–76.

        In the meantime, Homeland Security Investigations (HSI) agents had learned that

a man named “Leche” was interested in purchasing large quantities of cocaine. Id. at

777. Using the code words “white paint,” undercover HSI agents called “Leche,” whom

they later learned was Mr. Mendoza, to coordinate a reverse sting operation where Mr.

Mendoza would purchase six kilograms of cocaine for $150,000. Id. at 903–04, 951,

1031–32. Mr. Mendoza agreed to deliver the money at a Walmart parking lot in

Albuquerque, New Mexico. Id. at 280. On the morning of the scheduled transaction, Mr.

Mendoza asserts he attempted to call his friend, but he reached his friend’s brother, Mr.

Montijo, instead. Id. at 1416. He told Mr. Montijo about needing to give drug cartel


2
    Citations refer to the record in Case No. 18-2036 unless otherwise indicated.

                                              3
members his life savings, but he claimed not to have told Mr. Montijo that the transaction

involved narcotics. Id. at 1421. Mr. Mendoza asked Mr. Montijo to accompany him, and

he testified that because he was too upset to drive, Mr. Montijo agreed to drive the pair to

Albuquerque. Id. at 1417–18.

       Mr. Mendoza and Mr. Montijo met the undercover agents in the Walmart parking

lot. The agents testified that Mr. Montijo drove in a “countersurveillance” pattern in the

parking lot, id. at 1207–10, that Mr. Mendoza used “coded” language when discussing

the narcotics, id. at 971–72, 1134, and that Mr. Montijo was in close proximity to Mr.

Mendoza during the narcotics discussion and did not appear ignorant of the subject

matter. Id. at 978. Both Mr. Mendoza and Mr. Montijo asked the agents if they could

complete the transaction elsewhere. Id. at 972, 1133–35. The agents declined, and Mr.

Montijo handed cash, which was wrapped in clear plastic and in bundles, to them. Id. at

285–86, 1146. More undercover agents then arrived in a separate vehicle that

purportedly contained cocaine. Id. at 287–88, 1426–27. Mr. Mendoza entered that

vehicle, received a bundle purportedly containing cocaine, and expressed his comfort that

the transaction had concluded, at which point the agents signaled other agents to arrest

the pair. Id. at 285–87; 1150. Mr. Montijo ran upon hearing sirens and seeing the law

enforcement officers and their lights, but he was later apprehended. Id. at 455–57, 1150–

51, 1157–58.

       Mr. Mendoza and Mr. Montijo were charged with conspiracy to possess with

intent to distribute cocaine; Mr. Mendoza also was charged with carrying a firearm

during and in relation to a drug trafficking crime. 1 R. 34–38. Mr. Mendoza and Mr.

                                             4
Montijo offered an affirmative defense of duress, 3 R. 212–13, 1994–97, and Mr. Montijo

also argued he believed the transaction involved only an extortion payment, not narcotics.

Id. at 218.

       The district court’s conspiracy instruction stated, in part:

       A conspiracy is an agreement between two or more persons to accomplish an
       unlawful purpose. It is a kind of “partnership in criminal purposes” in which
       each member becomes the agent or partner of every other member.
       ...
       [T]he evidence must show that the members of the alleged conspiracy came
       to a mutual understanding to try to accomplish a common and unlawful plan.

1 R. 282; see also Tenth Cir. Crim. Pattern Jury Instr. § 2.87. During deliberations, the

jury sent a note to the judge, which read, “Dear Judge, 1) pg 6 of instructions — 2 or

more persons agreed to possess[.] Who can be the 2 people — agents, defendants, etc.?”

1 R. 301. Mr. Mendoza’s counsel advised the court:

       [W]e talked among ourselves. And at the least, I believe, our viewpoint is
       the instruction stands on its own. There’s no reason to supplement it with an
       additional answer. I can see the confusion, especially when it comes to the
       agents. But nonetheless, I submit that the instruction is complete.

3 R. 2030–31. The government responded that “in the federal law . . . it can be anyone,

and that the other people who are in the conspiracy don’t need to be genuine

members. . . . So the answer to the question is yes, the two people can be anyone.” Id. at

2031. Mr. Mendoza’s counsel then reiterated that “I don’t think there is a gap in the

instruction that needs to be filled. And my response is that the jury should be told, You

must rely on the instruction as given.” Id. at 2032. Mr. Montijo’s counsel added that

“the answer is in the instruction.” Id. At 2033. The court ultimately responded to the



                                              5
jury’s note by telling them, “You must rely on the court’s instructions as written.” 1 R.

303; 3 R. 2034.

       The jury found both Mr. Mendoza and Mr. Montijo guilty of narcotics conspiracy.

Id. at 304. It acquitted Mr. Mendoza of the weapons charge. Id. Mr. Montijo then

moved for a judgment of acquittal notwithstanding the verdict, or, in the alternative, a

new trial.3 See United States v. Montijo-Dominguez, No. 18-2008, at 2 R. 100–08. The

court denied his motion and found there was sufficient evidence to support the jury’s

verdict. Montijo-Dominguez, No. 18-2008, at 1 R. 64. Mr. Montijo also objected to his

Presentence Report. Montijo-Dominguez, No. 18-2008, at 2 R. 112–23. The PSR did

not recommend a sentence below the mandatory minimum pursuant to § 3553(f) and

U.S.S.G. § 5C1.2(a)(5), but it did recommend a two-level enhancement for obstruction of

justice. Montijo-Dominguez, No. 18-2008, at 3 R. 8–9. Mr. Montijo argued that he had

provided at various times all the information he had and that the jury’s verdict did not

preclude a finding that he testified truthfully. Although the court sustained Mr. Montijo’s

objection to the obstruction enhancement, id. at 25, it disagreed with his safety-valve

argument:

       I had no choice but to conclude that he is not eligible for the safety valve.
       Because if I concluded that the defendant had fully and completely and
       truthfully debriefed, I would essentially find contrary to the jury verdict. I
       reviewed the jury instructions. I could not reconcile the jury verdict with the
       safety valve.



3
  Although Mr. Mendoza did not join in the motion, he orally moved for a judgment of
acquittal following the conclusion of the government’s case. See 3 R. 1248.

                                             6
Montijo-Dominguez, No. 18-2008, at 1 Supp. R. 6.



                                          Discussion

         Both Mr. Mendoza and Mr. Montijo challenge the sufficiency of the evidence

supporting a conspiracy to possess with intent to distribute cocaine and the district court’s

directing the jury to the instructions as given. Separately, Mr. Montijo challenges the

district court’s finding him ineligible for safety-valve treatment. We first address Mr.

Mendoza’s and Mr. Montijo’s common claims before turning to Mr. Montijo’s individual

claim.

A.       Mr. Mendoza and Mr. Montijo Invited Error and Are Precluded from
         Challenging the District Court’s Supplemental Jury Instruction

         This court ordinarily reviews a district court’s decision to supplement its jury

instructions for abuse of discretion, United States v. Arias-Santos, 39 F.3d 1070, 1075

(10th Cir. 1994), but the defendants did not object to the district court’s supplemental

instruction. Therefore, as recognized by the defendants, our review is for plain error.

United States v. Thompson, 866 F.3d 1149, 1163 (10th Cir. 2017). Reversal is warranted

under a plain error standard if (1) the district court erred; (2) the error was plain; (3) the

error affected the defendant’s substantial rights; and (4) the error seriously affected the

fairness, integrity, or public reputation of judicial proceedings. United States v. Olano,

507 U.S. 725, 732 (1993).

         The crux of the defendants’ argument is that the jury’s note demonstrated its

confusion and possibly erroneous belief that a defendant could be convicted of a

conspiracy solely with a government agent. Mendoza Aplt. Br. at 31. In addition, the
                                               7
defendants assert that the district court’s response was “plainly inadequate” to correct any

misunderstanding. Id. The government contests any error, let alone plain error, because

the district court referred the jury to the adequate instructions, and because defense

counsel endorsed the jury instructions below, thus inviting any error. Mendoza Aplee.

Br. at 12, 15–17. Because the district court’s error, if any there be, was invited, we need

not reach plain-error analysis, and we will not disturb the district court’s decision on

handling the jury’s query.

         Mr. Mendoza and Mr. Montijo are precluded from challenging the court’s

supplemental instruction on appeal given the invited error doctrine. A party invites error,

thereby intentionally waiving an issue, when he “attempt[s] to ‘induce the district court to

do anything it would not otherwise have done,’” or “affirmatively approv[es]” the court’s

decision. United States v. Rodebaugh, 798 F.3d 1281, 1304 (10th Cir. 2015) (quoting

United States v. Morrison, 771 F.3d 687, 694 (10th Cir. 2014), then United States v.

Cornelius, 696 F.3d 1307, 1319 (10th Cir. 2012)). We have also found invited error

where a party’s “argument on appeal is a complete reversal from the position [that party]

sought to and did assert” below. United States v. LaHue, 261 F.3d 993, 1013 (10th Cir.

2001).

         Mr. Mendoza and Mr. Montijo suggest that the doctrine should not apply, as the

government also contributed to the district court’s error. Mendoza Reply Br. at 17; see

United States v. Barrow, 118 F.3d 482, 490–91 (6th Cir. 1997). We are not persuaded.

Here, trial counsel for both Mr. Mendoza and Mr. Montijo endorsed the instruction as

delivered and argued successfully against further explanation. See Rodebaugh, 798 F.3d

                                              8
at 1304. By explicitly endorsing the jury instructions and arguing against further

explanation, Mr. Mendoza and Mr. Montijo forfeited their right to challenge them on

appeal.

B.     Sufficient Evidence Supported an Agreement Between the Defendants to
       Distribute Cocaine

       Sufficiency of evidence claims are subject to de novo review, and we view the

evidence in the light most favorable to the government. Rodebaugh, 798 F.3d at 1296.

Reversal is warranted only if no reasonable jury could have found the defendant guilty

beyond a reasonable doubt. Id.

       Mr. Mendoza and Mr. Montijo argue that the government’s evidence at best

demonstrated a conspiracy to possess, not distribute, cocaine. Lazaro arranged that Mr.

Mendoza would deposit the purchased cocaine in Lazaro’s garage. According to Mr.

Mendoza and Mr. Montijo, such a “transfer” of cocaine is different from distribution.

Mendoza Aplt. Br. at 50. Further, Mr. Mendoza and Mr. Montijo claim Mr. Montijo was

not involved in the transaction until the day of the arrest,4 and that there was no evidence

that he knew about the cocaine or shared a goal to distribute cocaine. Id. at 51; Montijo

Aplt. Br. at 26–27. The government counters that: (1) the quantity of cocaine involved

created an inference of an intent to distribute, (2) there was testimony as to Mr.

Mendoza’s and Mr. Montijo’s apparent expertise in narcotics trafficking, (3) the




4
  The Tenth Circuit Criminal Pattern Jury Instruction § 2.87, given at trial, properly
states that “[a] person may belong to a conspiracy for a brief period of time or play a
minor role.” Tenth Cir. Crim. Pattern Jury Instr. § 2.87; 1 R. 283.

                                             9
scheduled delivery to Lazaro’s garage satisfies the element of intent to distribute, and (4)

the participation of both defendants in the conversation with undercover agents

established a common purpose to distribute. Mendoza Aplee. Br. at 21–26; see also

Montijo Aplee. Br. at 13–14.

       The parties generally agree as to the law. A defendant cannot conspire with

another merely by way of his knowledge of the other individual’s unlawful intent. Direct

Sales Co. v. United States, 319 U.S. 703, 714 (1943). Rather, the co-conspirators must

share a common objective, or “common purpose or design.” United States v. Evans, 970

F.2d 663, 669 (10th Cir. 1992). The parties also agree that conspiracy to possess does not

equate to a conspiracy to distribute narcotics. Id. However, Mr. Mendoza and Mr.

Montijo rely on United States v. Ivy, 83 F.3d 1266 (10th Cir. 1996), to argue that a

“common purpose” exists only when the conspirators shared a profit motive. Mendoza

Aplt. Br. at 48. Yet the profit motive language in Ivy merely distinguishes end-user

buyers, who cannot be guilty of conspiring to distribute narcotics, with sellers (the

“buyer-seller” rule). Ivy, 83 F.3d at 1285–86. And, although the district court did not

instruct on distribution, “possess with intent to distribute” means possession “with intent

to deliver or transfer possession of a controlled substance to another person, with or

without any financial interest in the transaction.” Tenth Cir. Crim. Pattern Jury Instr. §

2.85; United States v. Knight, 659 F.3d 1285, 1293 (10th Cir. 2011). Accordingly, it is

immaterial to the defense that Mr. Mendoza intended only to transfer possession of the

cocaine to Lazaro.



                                             10
       Contrary to Mr. Mendoza’s and Mr. Montijo’s assertions, there is enough evidence

to support a common goal of distributing the six kilograms of cocaine. First, although the

distribution-quantity of narcotics alone is insufficient to support the jury’s apparent

finding, United States v. Levario, 877 F.2d 1483, 1486 (10th Cir. 1989), abrogated on

other grounds by Gozlon-Peretz v. United States, 498 U.S. 395, 403 n.7 (1991), a jury

may permissibly infer intent to distribute from that evidence. United States v. Pulido-

Jacobo, 377 F.3d 1124, 1131 (10th Cir. 2004). In addition, the jury heard testimony that

Mr. Mendoza spoke to the agents about a “next time,” a statement consistent with an

intended narcotics arrangement, not extortion payments. 3 R. 980. There was also

testimony that Mr. Montijo engaged in the conversation with the government agents, such

that they believed him to be an experienced drug trafficker, id. at 969–70, 1133, and that

he attempted to flee at the first sight of identifiable officers. Id. at 1150–51, 1157–58.

Although the jurors heard contrary testimony that Mr. Montijo had no knowledge that the

transaction involved narcotics, it was within their province to credit one of two

conflicting accounts. See United States v. Pikyavit, 527 F.3d 1126, 1130 (10th Cir.

2008). Similarly, although Mr. Mendoza explained that he and Mr. Montijo drove

around the parking lot because of a misunderstanding as to the meeting spot, 3 R. 1424,

the agents described their driving as reflecting a “countersurveillance” pattern. See id. at

1207–10. The jury thus heard (and credited) evidence that Mr. Montijo was both aware

of the nature of the transaction and was intimately involved. Such evidence was

sufficient to support a finding that Mr. Mendoza and Mr. Montijo conspired to possess

with an intent to distribute large quantities of cocaine.

                                              11
C.     The District Court Properly Denied Mr. Montijo Safety Valve Treatment
       Under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2

       This court reviews a district court’s denial of safety-valve relief for clear error,

United States v. Hargrove, 911 F.3d 1306, 1325 (10th Cir. 2019), and it reviews

challenges to the district court’s interpretation of the scope of § 3553(f) and U.S.S.G.

§ 5C1.2 de novo. United States v. Stephenson, 452 F.3d 1173, 1180 (10th Cir. 2006).

The government argues for plain error review, contending that Mr. Montijo made a

different argument before the district court, namely that he had provided complete and

truthful testimony notwithstanding the verdict. Montijo Aplee. Br. at 20–21. We have

reviewed the arguments below and conclude that Mr. Montijo did argue that a jury’s

verdict should not have preclusive effect on safety-valve eligibility. Accordingly, we

review the district court’s denial of safety-valve relief for clear error, and, to the extent

Mr. Montijo argues that the district court misunderstood the applicable sentencing

statutes, we review its interpretation de novo.

       Mr. Montijo points to the court’s statement that “if [it] concluded that the

defendant had fully and completely and truthfully debriefed, [it] would essentially find

contrary to the jury verdict.” He argues that a jury’s finding against a defendant does not

foreclose relief under § 3553(f), even when the defendant maintains his innocence as to

one or more elements of the underlying offense. He thus challenges the court’s factual

determination that Mr. Montijo’s truthfulness was inconsistent with the jury’s verdict,

and the court’s legal interpretation of § 3553(f) as precluding safety-valve relief upon a

guilty jury verdict. In response, the government argues a finding that Mr. Montijo had


                                              12
“truthfully provided to the Government all information and evidence the defendant has

concerning the offense,” § 3553(f)(5), would have been contrary to and entirely

inconsistent with the jury’s verdict, and that the denial of safety-valve relief was

warranted.

       1.     The District Court Did Not Clearly Err in Determining That the Jury
              Found Mr. Montijo’s Testimony to be Untruthful

       Mr. Montijo argues that the jury could plausibly have credited his testimony as

truthful despite its guilty verdict, stating that “it is impossible to determine what evidence

the jury relied upon to determine the guilty verdict and the weight of the evidence that it

placed upon Montijo’s testimony.” Montijo Aplt. Br. at 23. Yet he fails to explain how

the jury could have credited his testimony that he had no knowledge of the nature of the

transaction, yet still convict him of knowingly conspiring with Mr. Mendoza. Instead,

the jury necessarily must have found that Mr. Montijo knowingly participated in a

conspiracy with Mr. Mendoza. Accordingly, the district court did not clearly err in its

finding that the jury found his testimony to be untruthful.

       2.     The District Court Properly Interpreted § 3553(f)

       Mr. Montijo next argues that the district court committed legal error when it stated

that, despite its reservations about Mr. Montijo’s guilty verdict, safety-valve relief would

be “contrary to the jury verdict.” According to Mr. Montijo, the court’s statement

evinced its misunderstanding that § 3553(f) required a finding by the jury, not the judge,

of Mr. Montijo’s eligibility for safety-valve treatment. Montijo Aplt. Br. at 16. The




                                             13
government counters that a judicial finding of Mr. Montijo’s truthfulness would have

impermissibly contradicted the jury’s verdict. Montijo Aplee. Br. at 22–24.

       Mr. Montijo relies heavily on a Ninth Circuit case, United States v. Sherpa, 110

F.3d 656 (9th Cir. 1996), which allowed a district court to apply safety-valve relief

notwithstanding a jury’s finding that a defendant testified untruthfully. Montijo Aplt. Br.

at 18–19, 21–22. In Sherpa, the jury found a purportedly ignorant defendant guilty for

knowingly possessing heroin with intent to distribute and for knowingly importing

heroin. Sherpa, 110 F.3d at 659. Nevertheless, the Ninth Circuit upheld the district

court’s decision to apply safety-valve relief, holding that “the safety valve requires a

separate judicial determination of compliance which need not be consistent with a jury’s

findings.” Id. at 662.

       Our circuit’s case law diverges from that of the Ninth Circuit. Contrary to the

holding in Sherpa, we held in United States v. De La Torre that “[n]o reasonable

defendant could claim safety-valve eligibility based on trial testimony that necessarily

contradicts the conviction itself.” 599 F.3d 1198, 1206 (10th Cir. 2010). Here, Mr.

Montijo denied his involvement in a conspiracy both on the witness stand and during

conversations with the government. See Montijo-Dominguez, No. 18-2008, at 2 R. 169–

71; id. at 4 R. 1836. Nevertheless, the jury found him guilty of knowing participation in

the conspiracy. Thus, the district court could not have granted safety-valve relief without

directly undermining the jury’s verdict that he knowingly conspired with Mr. Mendoza.




                                             14
We therefore uphold the district court’s denial of safety-valve relief.

       AFFIRMED.


                                              Entered for the Court


                                              Paul J. Kelly, Jr.
                                              Circuit Judge




                                             15
