                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         FEB 17 2004
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

                                                        No. 02-2222
          v.                                    (D.C. No. CR-00-1424-JC)
 JOE COBOS,                                          (D. New Mexico)

               Defendant - Appellant.



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
                                                        No. 02-2237
          v.                                    (D.C. No. CR-00-1424-JC)
 ARTURO NATERA,                                      (D. New Mexico)

               Defendant - Appellant.




                            ORDER AND JUDGMENT          *




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before EBEL , ANDERSON , and HARTZ , Circuit Judges.


      This Order and Judgment consolidates for disposition the appeals in

United States v. Cobos, No. 02-2222, and United States v. Arturo Natera, No.

02-2237. After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of either appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.

34.1(G). The cases are therefore ordered submitted without oral argument.

      Defendants Arturo Natera (Arturo) and Joe Cobos (Cobos) were arrested

for their participation in a drug-distribution conspiracy and charged in a fifteen-

count indictment along with twelve other individuals. They were convicted after

a jury trial on charges of (1) conspiracy to possess with intent to distribute

methamphetamine, marijuana, and cocaine, and (2) manufacturing

methamphetamine within one thousand feet of a school. In addition, Arturo was

convicted of possession with intent to distribute less than fifty kilograms of

marijuana, and Cobos was convicted of possession with intent to distribute less

than fifty grams of methamphetamine. Arturo was sentenced to imprisonment of

360 months on the first two charges and sixty months on the third. Cobos was

sentenced to imprisonment of 360 months on the first two charges and 240 months

on the third.



                                         -2-
      Defendants’ appeals raise the same three arguments: (1) that they are

entitled to resentencing under Apprendi v. New Jersey, 530 U.S. 466 (2000); (2)

that there was insufficient evidence to convict them of manufacturing

methamphetamine within one thousand feet of a school; and (3) that they received

ineffective assistance from their respective trial attorneys. We exercise

jurisdiction under 28 U.S.C. § 1291 and affirm in each case.

I. BACKGROUND

      A. Underlying Facts

      Arturo was the head of a drug trafficking conspiracy based in Roswell,

New Mexico, from 1997 until October of 2000. Four members of the conspiracy

—among other witnesses—testified against him at trial. Abel Juaregi, Arturo’s

partner in a car sales lot, testified about Arturo’s involvement in bringing large

quantities of marijuana, cocaine, and methamphetamine to Roswell. Jeannine

Sena, Arturo’s girlfriend, testified about accompanying him to Texas to pick up

cocaine and to Mexico to purchase marijuana. Leta Quesada, Jeannine’s mother

and a veteran narcotics transporter, testified about obtaining two kilograms of

cocaine and 80 pounds of marijuana for Arturo. James Bruce Henry (Henry), a

methamphetamine cook, testified that he manufactured methamphetamine for

Arturo and his brother, Marcos Natera (Marcos).




                                         -3-
      Cobos was involved in Arturo’s drug distribution scheme. Juaregi testified

that he would purchase drugs from Cobos when Arturo had none to sell him. He

also testified that Cobos was Arturo’s primary conduit for selling illegal drugs.

Cobos, he said, ran Arturo’s drug trafficking operation while Arturo was in

prison.

      In April of 2000, Marcos was arrested after police in Tennessee found

marijuana hidden in a pickup truck he was driving. While in jail awaiting release

on bond, Marcos met Henry, who was charged with manufacturing

methamphetamine. Marcos told him that he was looking for a methamphetamine

cook, and Henry volunteered to return to Roswell with him. Upon arriving in

Roswell, Henry and his girlfriend stayed at Marcos’s apartment, and then moved

into a house at 1418 East Tilden Street, which was owned by Arturo. The house

was within 1000 feet of Mesa Middle School.

      Henry manufactured methamphetamine in the house’s garage for three to

four weeks, but wished to move the operation in anticipation of having his

children join him in Roswell. Marcos suggested moving the methamphetamine

lab to the countryside, and Cobos told them that he had a travel trailer that they

could use. Cobos and Henry retrieved the trailer, but rather than moving the

operation outside of Roswell, the trailer remained adjacent to the Tilden Street




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house until Henry’s arrest. Henry never lived in the trailer and used it only for

manufacturing methamphetamine.

      By Henry’s estimates, he manufactured four or five pounds of

methamphetamine while residing at the Tilden Street house. He testified that he

supplied methamphetamine to Defendants for their personal use, and also that he

gave Cobos methamphetamine to “get rid of” for him. In addition, Henry testified

that Arturo gave him $500 to purchase pseudoephedrine pills for use in the

manufacture of methamphetamine, and that he gave Arturo two ounces of

methamphetamine in return. According to Henry, he also gave Arturo an ounce of

methamphetamine in lieu of paying rent on the house.

      As discussed in United States v. Ramirez, 348 F.3d 1175, 1178 (10th Cir.

2003), the conspiracy ultimately attracted the attention of state and federal law

enforcement agencies in late 1999 and early 2000. Their investigation included

the use of undercover agents and wiretaps on two of Arturo’s cellular telephones.

On October 27, 2000, a federal grand jury handed down a fifteen-count

indictment charging Defendants and twelve others with conspiracy and other drug

offenses.

      B. Proceedings Below

      Four counts of the indictment are relevant to these appeals. In Count I

Defendants and others were charged with conspiring, in violation of 21 U.S.C.

§ 846, to commit the following crimes:

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      Possession with intent to distribute 50 grams and more of
      methamphetamine . . . contrary to 21 U.S.C. § 841(a)(1) and 21
      U.S.C. § 841(b)(1)(A); possession with intent to distribute 100
      kilograms and more of marijuana . . . contrary to 21 U.S.C.
      § 841(a)(1) and 21 U.S.C. § 841(b)(1)(B); and possession with intent
      to distribute less than 500 grams of cocaine . . . contrary to 21
      U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(C).

R., Vol. I, Doc. 31 at 2. Count II charged Arturo, Cobos, and Marcos with

“knowingly and intentionally mak[ing] a building or enclosure available for the

purpose of unlawfully manufacturing a controlled substance within 1000 feet of a

school.” R., Vol. I., Doc. 31 at 6. Count IX charged Cobos with “possess[ion]

with intent to distribute less than 50 grams of a mixture and substance containing

a detectable amount of methamphetamine, its Salts, isomers, and Salts of its

isomers . . . .” R., Vol. I, Doc. 31 at 9. Count XIV charged Arturo, among

others, with “possess[ion] with intent to distribute less than 50 kilograms of

Marijuana . . . .” R., Vol. I, Doc. 31 at 11.

      The jury convicted Defendants on all counts. On a special verdict form, the

jury found that the objectives of the conspiracy to which Defendants agreed

involved methamphetamine, marijuana, and cocaine. As to Arturo, it found that

the amount of methamphetamine and marijuana “involved in the scope of the

conspiracy” included: “50 grams and more (pure methamphetamine),” and “100

kilograms and more” marijuana. R., Vol. I, Doc. 319 at 2. As to Cobos, it found

that the conspiracy involved “[l]ess than 50 grams, but more than 5 grams (pure


                                           -6-
methamphetamine),” and “[a]t least 50 kilograms, but less than 100 kilograms”

marijuana. Id. at 8. Defendants were sentenced to 360 months’ imprisonment on

Counts I and II. Arturo received 60 months’ imprisonment on Count XIV, and

Cobos received 240 months’ imprisonment on Count IX.

      Defendants timely appealed. Their respective attorneys filed briefs in

accordance with Anders v. California, 386 U.S. 738 (1967), asserting that after

reviewing the record, they could discern no meritorious basis for appeal.

Defendants subsequently filed pro se appellate briefs, and the United States, upon

the order of this Court, responded. Cobos then filed a reply brief.

II. ANALYSIS

      A. Apprendi

      Defendants contend that the district court’s imposition of 360-month

sentences for their convictions on Counts I and II was unconstitutional under

Apprendi v. New Jersey, 530 U.S. 466 (2000). Neither of them, however, raised

such an argument before the district court. Therefore, we review for plain error

the sentences that the district court imposed. Under this standard, Defendants

must demonstrate: “(1) an error; (2) that is plain or obvious; (3) that affects

substantial rights; and (4) that seriously affects the fairness, integrity or public

reputation of judicial proceedings.” United States v. James, 257 F.3d 1173, 1182




                                          -7-
(10th Cir. 2001). Although “we apply this rule less rigidly when reviewing a

potential constitutional error,” id., we can find no Apprendi violation here.

      Defendants may assert a claim under Apprendi only if the district court

imposed a sentence in excess of the statutory maximum for the offense of which

they were convicted. See, e.g., United States v. O’Flanagan, 339 F.3d 1229, 1232

n.2 (10th Cir. 2003). This was not the case here. As to Count I, the jury found

Defendants guilty under 21 U.S.C. § 846 of conspiring to possess with intent to

distribute methamphetamine, marijuana, and cocaine, in violation of 21 U.S.C.

§ 841(a)(1). According to 21 U.S.C. § 846, “Any person who . . . conspires to

commit any offense defined in this subchapter shall be subject to the same

penalties as those prescribed for the offense, the commission of which was the

object of the . . . conspiracy.” The jury returned special verdict forms finding that

possession with intent to distribute methamphetamine, marijuana, and cocaine

were objects of the conspiracy. The jury also found by special verdict that as to

Arturo, the conspiracy involved “50 grams and more (pure methamphetamine),”

R., Vol. I, Doc. 319 at 2, and as to Cobos, the conspiracy involved “[l]ess than 50

grams, but more than 5 grams (pure methamphetamine),” id. at 8. Hence, as to

the methamphetamine alone, Arturo faced a sentence as severe as life

imprisonment, see 21 U.S.C. § 841(b)(1)(A)(viii), and Cobos faced as much as

forty years’ imprisonment, see 21 U.S.C. § 841(b)(1)(B)(viii).


                                         -8-
      As to Count II, the jury convicted Defendants of violating 21 U.S.C.

§§ 856(a)(2) and 860(a). Section 856(a)(2) makes it unlawful to:

      manage or control any place, whether permanently or temporarily,
      either as an owner, lessee, agent, employee, occupant, or mortgagee,
      and knowingly and intentionally rent, lease, profit from, or make
      available for use, with or without compensation, the place for the
      purpose of unlawfully manufacturing, storing, distributing, or using a
      controlled substance.

Their sentences were enhanced under Section 860(a), which provides:

      Any person who violates . . . section 856 of this title by . . .
      manufacturing a controlled substance in or on, or within one
      thousand feet of, the real property comprising a public or private
      elementary, vocational, or secondary school . . . is . . . subject to (1)
      twice the maximum punishment authorized by section 841(b) of this
      title . . . .

(emphasis added). Even under 21 U.S.C. §841(b)(1)(C), which provides the most

lenient sentence for the manufacture of a schedule II controlled substance such as

methamphetamine, Defendants were eligible for a sentence of 20 years’

imprisonment. Once this sentence is doubled under 21 U.S.C. § 860(a),

Defendants faced up to forty years’ imprisonment.

      Thus, the district court did not err, let alone plainly err, under Apprendi by

imposing sentences (30 years) well within the statutory range for each conviction.

      B. Sufficiency of Evidence

      Defendants contend that the district court improperly denied their motions

for judgment of acquittal on Count II of the indictment because the government


                                          -9-
presented insufficient evidence to convict them of making available a building or

enclosure for the manufacture of methamphetamine within 1000 feet of a school.

Specifically, Defendants contend that the government did not prove beyond a

reasonable doubt (1) that they knew that Bruce Henry used the travel trailer to

manufacture methamphetamine; (2) that Henry produced 50 grams or more of

methamphetamine in the trailer; or (3) that the trailer was within 1000 feet of a

school.

      “We review de novo the district court’s denial of a motion for a judgment

of acquittal,” viewing “all the evidence in the light most favorable to the

government.” United States v. Ramirez, 348 F.3d at 1180 (internal quotation

marks omitted). “We must determine whether there is evidence from which a jury

could find the defendant guilty beyond a reasonable doubt,” but “[w]e do not . . .

weigh the evidence or consider the credibility of the witnesses in making our

determination.” Id. (internal quotation marks and brackets omitted).

      Defendants’ arguments are without merit. As for Defendants’ knowledge

that the trailer was used for the manufacture of methamphetamine, Henry testified

that because his children were to join him in Roswell at the Tilden Street house,

he discussed with Marcos the possibility of moving the manufacturing operation.

Marcos suggested getting a piece of land in the country. Cobos, who was present

during this discussion, volunteered a travel trailer and later took Henry to retrieve


                                         -10-
it. But rather than setting up the trailer somewhere in the country, it remained

next to the house, where it was used exclusively for manufacturing

methamphetamine. Henry testified that he gave both Defendants

methamphetamine for their personal use, and that he gave Cobos some to “get rid

of,” R., Vol. XI at 317:15. He also testified that he gave Arturo two ounces of

methamphetamine made from pseudoephedrine pills paid for by Arturo, and one

ounce in lieu of rent. From this, a jury could conclude beyond a reasonable doubt

that each Defendant knew that Henry used the trailer to manufacture

methamphetamine.

      With respect to the amount of drugs manufactured, Defendants claim that

the government’s evidence was insufficient to prove beyond a reasonable doubt

that Henry manufactured more than 50 grams of methamphetamine in the trailer.

As an initial matter, we are uncertain why Defendants believe that the government

was required to prove as an element of the crime that any benchmark amount of

methamphetamine was manufactured in the trailer. As discussed above, the

district court sentenced them to thirty years’ imprisonment, well within the range

permitted under 21 U.S.C. § 841(b)(1)(C), as enhanced by 21 U.S.C. § 860(a).

Thus, the government was not required to charge in the indictment, and prove to

the jury beyond a reasonable doubt as an element of the offense, that Henry




                                        -11-
manufactured a given benchmark amount in the trailer. See United States v.

Jones, 235 F.3d 1231, 1236 (10th Cir. 2000).

      Furthermore, even if the government was required to produce evidence that

Henry manufactured more than 50 grams of methamphetamine in the trailer, it met

this burden. Although Henry’s estimates of the total amount of methamphetamine

that he manufactured varied during the course of his testimony, all estimates

exceeded one pound. He also estimated that in each batch he manufactured

between one and three ounces. Because 50 grams is less than two ounces, this

testimony clearly sufficed.

      As for the distance between the trailer and the school, Agent Eric Brackeen

of the Roswell Police Department testified that he used a “roll-a-tape device” to

measure the distance. He testified that the trailer was adjacent to the house at

1418 East Tilden Street in Roswell. Starting on the sidewalk to the west of that

address, he proceeded east along East Tilden Street to Hinkel Street, then

southeast on Hinkel to the sidewalk of Mesa Middle School, and then on to the

back door on the northwest side of the school. The distance measured 628 feet,

11 inches. He then “reset the measurement and took it back to see if it was going

to be in close proximity and it was about 11 inches off, is all. It was 628 feet

from the back of the school door back to the beginning of the residence.” R.,

Vol. XI at 215: 22-25. He also testified that the measurement “as the crow flies”


                                        -12-
would have been less than 628 feet. From this testimony the jury could conclude

beyond a reasonable doubt that the trailer in which Henry manufactured

methamphetamine was within 1000 feet of a school.

      C. Ineffective Assistance of Counsel

      Finally, Defendants contend that they received ineffective assistance of

counsel because their attorneys did not object to the presentence report on which

their sentences were based. Defendants argue that they were especially

prejudiced by their attorneys’ failure to object to the government’s evidence of

their knowledge that methamphetamine was being manufactured, the distance

between the methamphetamine lab and the school, and the quantity of drugs

manufactured.

      As a general rule, “[i]neffective assistance of counsel claims should be

brought in collateral proceedings, not on direct appeal. Such claims brought on

direct appeal are presumptively dismissible, and virtually all will be dismissed.”

United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc).

Requiring ineffective assistance claims to be brought on collateral attack allows

the district court to create a factual record, if necessary, on the issue of

ineffective assistance. It also gives “counsel accused of deficient performance”

the opportunity to “explain their reasoning and actions, and the district court can

render its opinion on the merits of the claim.” Id.


                                          -13-
      We do not depart from the general rule in this case and dismiss this claim

as premature.

III. CONCLUSION

      We AFFIRM the judgments in Nos. 02-2222 and 02-2237. The motions to

withdraw by Defendants’ appellate attorneys are GRANTED. Arturo Natera’s

motion for appointment of counsel is DENIED. We construe Cobos’s reply brief

as a motion for appointment of counsel; this motion is also DENIED.


                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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