                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        May 30, 2007
                                   TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                         Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                         No. 05-6398
 v.                                               (D.C. No. 04-CR-179-6-R)
                                                        (W .D. Okla.)
 A D RIA N MA C IA S C ASTR O,

          Defendant-Appellant.



                                OR DER AND JUDGM ENT *


Before KELLY, HOL LOW A Y, and GORSUCH, Circuit Judges.


      Follow ing a trial in w hich he w as found guilty of 11 narcotics felonies,

Adrian M acias Castro appeals to us arguing that the district court erroneously

failed to suppress incriminating evidence, legally insufficient evidence exists to

sustain his conviction, and the district court engaged in improper fact finding

during sentencing. Constrained to conclude that M r. Castro lacks standing to

challenge the search at issue, we affirm the district court’s denial of M r. Castro’s

suppression motion and affirm as well on the remaining issues before us.




      *
         This order and judgment is not binding precedent except under the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.
      Oklahoma City gang member Jason “Joker” Lujan agreed to cooperate w ith

authorities after his arrest in 2003, volunteering that several members of a

Hispanic gang from California, later identified as the Compton Varrio Tortilla

Flats, including “Boxer,” “Lalo,” and M r. Lujan’s sister-in-law, Jennifer Lujan,

had moved to Oklahoma City to deal large quantities of methamphetamine.

Specifically, M r. Lujan explained that Boxer, later identified as Dennis Emerson

Gonzalez, had already left Oklahoma City but still ran the operation; Lalo, later

identified as Eduardo Verduzco, delivered drugs to O klahoma City at M r.

Gonzalez’s direction; M s. Lujan distributed the drugs in O klahoma City; and M r.

Gonzalez’s girlfriend, “M ousey,” stored the drugs in her apartment.

      In cooperation with the police, M r. Lujan called his sister-in-law to arrange

for a purchase of methamphetamine. M s. Lujan agreed to the deal and traveled to

M r. Lujan’s home to complete the transaction. On her way there, she was

followed by police, stopped for a traffic violation, and then arrested for failing to

produce a valid driver’s license. Officers searching her vehicle found $1,220.25

in cash, 12 grams of methamphetamine, a drug ledger, and two cell phones.

Purportedly because they feared that fellow members of the conspiracy would

grow suspicious when M s. Lujan didn’t arrive at M r. Lujan’s home and might

proceed to destroy evidence, the police rushed to M s. Lujan’s apartment. There,

they knocked on the door and received no response, though they heard several

people moving about inside the residence. Officers proceeded to kick down the

                                         -2-
door and place the occupants they found inside the apartment in the back of police

cruisers to “secure” the scene. They then sought and obtained a search warrant,

subsequently finding and seizing a substantial quantity of methamphetamine from

M s. Lujan’s apartment and other sources related to the gang’s operations. Further

investigation by the police led to the discovery of a loaded pistol which was

eventually tied to M r. Castro.

      A federal grand jury eventually charged M r. Castro and eleven others w ith

79 felony counts related to the drug ring. W ith respect to M r. Castro, the grand

jury returned 11 charges ranging from participating in a drug conspiracy to being

a felon unlawfully in possession of a firearm to engaging in a money laundering

scheme. M r. Castro moved to suppress the evidence obtained from M s. Lujan’s

apartment but, after an evidentiary hearing, the district court denied his motion,

finding that M r. Castro had no reasonable expectation of privacy in M s. Lujan’s

residence. D.E. 207 (Order at 2). Eight of the eleven defendants indicted as part

of the drug ring eventually pled guilty and cooperated w ith the government. M r.

Castro, along with two associates, elected to proceed to trial. After two weeks of

proceedings, the jury returned guilty verdicts against M r. Castro on all of the

counts with which he was charged.

      In assessing M r. Castro’s appeal of the district court’s disposition of his

motion to suppress, we review the evidence in the light most favorable to the

United States, accepting unless clearly erroneous the district court’s factual

                                         -3-
findings and reviewing de novo its Fourth A mendment reasonableness

determination. United States v. Angevine, 281 F.3d 1130, 1133 (10th Cir. 2002)

(internal quotation omitted). M r. Castro bears the burden of establishing a Fourth

Amendment violation. See Rakas v. Illinois, 439 U.S. 128, 131 n.1 (1978).

      Even view ing the facts in the light most favorable to the government, we

remain troubled by M r. Castro’s allegation that “the exigency was created by the

police” who followed and stopped M s. Lujan for a traffic infraction, then

bootstrapped that stop into a felt need to raid and secure her apartment before

others in the gang might get wind of her detention. Law enforcement may not,

consistent with our constitutional charter, create their own exigencies to avoid the

necessity of a warrant to enter a person’s home. See United States v. Bonitz, 826

F.2d 954, 957 (10th Cir. 1987) (rejecting government’s argument that exigent

circumstances justified a warrantless search where “the only immediate danger

that existed was created by the officers themselves”). Our difficulty in affording

M r. Castro relief in this case is that the Supreme Court has also repeatedly

instructed that Fourth Amendment rights are personal ones. That is to say, in

order to establish standing to challenge a search as a Fourth Amendment

violation, a “defendant must prove ‘a legitimate expectation of privacy’ in the

place searched,” Angevine, 281 F.3d at 1134 (quoting Rakas, 439 U.S. at 143),

something which requires a showing of both a “‘subjective expectation of privacy

in the area searched,’” and a showing that this expectation is “‘one that society is

                                         -4-
prepared to recognize as reasonable.’” Id. (quoting United States v. Anderson,

154 F.3d 1225, 1229 (10th Cir. 1998)). Thus, M s. Lujan’s right to contest the

validity of the police action with respect to the search of her own apartment does

not necessarily confer standing to M r. Castro to do the same.

      M r. Castro argues for standing by stressing that he was M s. Lujan’s former

boyfriend and that mail addressed to him was found in the apartment during the

raid. M r. Castro, however, neglects to point us to other highly pertinent facts in

the record that augur against standing. The district court expressly found that M r.

Castro shot a gun at M s. Lujan three months prior to the challenged search and

that, after the shooting, M r. Castro moved out of the apartment, away from

Oklahoma City, and back to California. D.E. 207 (Order at 2.) The district court

also noted that only M s. Lujan appeared as the lessee on the apartment’s lease.

Id. Finally, the government produced evidence that M r. Castro was not at the

residence at the time of its search, Supp. Hr’g Tr. at 22; that M r. Castro had no

clothing at the residence, id. at 24; and that M r. Castro did not pay any bills at the

residence, id. Given these additional facts, we are unable to say the district court

erred in its factual finding that M r. Castro was sent packing after assaulting his

girlfriend and thus had no objectively reasonable expectation of privacy

remaining in the apartment three months later, at the time of the raid. Indeed,

courts have repeatedly held that individuals in analogous circumstances lack

Fourth Amendment standing. Com pare, e.g., Bonds v. Cox, 20 F.3d 697, 701 (6th

                                          -5-
Cir. 1994) (homeowner “not occupying the house during the relevant time

period,” who allowed her son to live there while she was ill, had no expectation

of privacy in the house); with Trask v. Franco, 446 F.3d 1036, 1042 (10th Cir.

2006) (“[Both individuals] were living in the residence when the nonconsensual

search occurred and had a reasonable expectation of privacy in their home.”). 1

      M r. Castro’s sufficiency of the evidence challenge is no more availing. In

review ing such challenges w e are obliged to view the evidence and all reasonable

inferences that can be derived from that evidence in the light most favorable to

the government, United States v. Ramirez, 479 F.3d 1229, 1249 (10th Cir. 2007)

(internal quotation omitted), and we have explained that this “‘restrictive standard

of review for a sufficiency of the evidence question provides us w ith very little

leeway.’” United States v. Sells, 477 F.3d 1226, 1235 (10th Cir. 2007) (quoting

United States v. Evans, 970 F.2d 663, 671 (10th Cir. 1992)).

      M r. Castro does not point us to any specific element on w hich he contends

evidence was lacking, arguing rather more generically that the government’s drug

conspiracy case was based on “rather meager circumstantial inferences.” Aplt.

Br. at 19. But our precedent teaches that the government may meet its burden on



      1
         M r. Castro replies by commenting that “[t]here is no evidence that any
other person had moved into his bedroom nor taken his place in the relationship
with Jennifer Lujan.” Aplt. Br. at 10. But it is hardly the case that a former
boyfriend or spouse automatically retains a legitimate expectation of privacy in
the home of their “ex” until and unless someone “takes his place in the
relationship.”

                                        -6-
the elem ents of each crime of conviction by either direct or circumstantial

evidence. Sells, 477 F.3d at 1235. And in this case the government offered

significant direct and circumstantial evidence of M r. Castro’s participation in the

drug ring. By way of example only, M s. Lujan personally testified to M r.

Castro’s involvement in the drug conspiracy, explaining, among other things, that

he arrived by bus from California in 2002 carrying a duffel bag, which he

delivered to M r. Gonzalez. After M r. Castro, M r. Gonzalez, and another co-

conspirator entered a bedroom with the bag, methamphetamine was brought out to

M s. Lujan. Trial Tr. at 562-63; see also id. at 784, 834. M s. Lujan also testified

that M r. Castro drove a Chevrolet Blazer carrying approximately two pounds of

methamphetamine from California to Oklahoma in July or August of 2003. Trial

Tr. at 613-15. W e have found evidence along these lines sufficient in other cases

to sustain convictions like M r. Castro’s. See, e.g., United States v. Small, 423

F.3d 1164, 1183-85 (10th Cir. 2005) (circumstantial evidence linking defendants

to each other sufficient for conviction of involvement in drug conspiracy); United

States v. Lauder, 409 F.3d 1254, 1259-60 (10th Cir. 2005) (circumstantial

evidence linking defendant to drugs sufficient for conviction of possession with

intent to distribute); United States v. Ramirez, 348 F.3d 1175, 1181-82 (10th Cir.




                                         -7-
2003) (sufficient evidence to support conviction for conspiracy to possess with

intent to distribute). 2

       On the firearm charge, likewise, M s. Lujan testified that on one occasion

M r. Castro pointed a gun at her, pointed it at her car, and then started shooting at

the car; this is sufficient for a jury to infer M r. Castro’s knowing possession of a

firearm and thus a violation of the statutory prohibition against felons possessing

firearms, particularly given M r. Castro’s stipulation to a prior felony conviction

and the government’s evidence that the firearm had been made in M assachusetts

and found in Oklahoma, thereby affording an interstate nexus. United States v.

Gorman, 312 F.3d 1159, 1163-64 (10th Cir. 2002) (“In a conviction of possession

of a firearm by a convicted felon pursuant to 18 U.S.C. § 922(g)(1), the

government must prove beyond a reasonable doubt: (1) the defendant was

previously convicted of a felony; (2) the defendant thereafter knowingly

possessed a firearm; and (3) the possession was in or affecting interstate

commerce.” (internal quotation omitted)).

       W ith respect to the money laundering conspiracy charges, M r. Castro

argues that the government never produced evidence of an actual agreement

between him and other members of the gang. But M r. Castro’s argument fails to



       2
         M r. Castro also argues that M s. Lujan never actually saw M r. Castro with
drugs. That assertion is incorrect. M s. Lujan testified, for example, that she saw
M r. Castro and another co-conspirator take the back seat out of the Chevrolet
Blazer, revealing methamphetamine hidden in the seat. Trial Tr. at 613-15.

                                         -8-
recognize our controlling precedent providing that “an agreement constituting a

conspiracy may be inferred from the acts of the parties and other circumstantial

evidence indicating concert of action for the accomplishment of a common

purpose.” United States v. Torres, 53 F.3d 1129, 1134 (10th Cir. 1995) (internal

quotation and alteration omitted). The government presented evidence that M r.

Castro did not report any income for the tax year 2003. It offered evidence that

M r. Castro accompanied M s. Lujan on at least one occasion when she wired drug

money through W estern Union. It produced evidence that M r. Castro himself

drove drug money from Oklahoma to California. A nd it supplied evidence that,

on individual wire transfers, M r. Castro used different telephone numbers and

listed different residential addresses, as well as testimony from an Internal

Revenue Service agent that the wire transfers by members of the conspiracy,

including M r. Castro, showed a pattern of money sent from Oklahoma to

California and Florida using false names and false addresses. Such evidence,

together with the evidence of M r. Castro’s involvement in the gang’s drug

operations, was sufficient under our case law for a jury to find M r. Castro guilty

beyond a reasonable doubt of the charged money laundering offenses. See

Torres, 53 F.3d at 1136-37; United States v. Garcia-Emanual, 14 F.3d 1469,

1473, 1476-78 (10th Cir. 1994); United States v. Dimeck, 24 F.3d 1239, 1242-43

(10th Cir. 1994).




                                         -9-
      At the conclusion of M r. Castro’s trial, the jury indicated on a special

verdict form that the amount of methamphetamine attributable to that conspiracy

was 500 grams “or more.” Later, at sentencing, the district court found, by a

preponderance of the evidence, that M r. Castro was personally involved with, and

for sentencing purposes responsible for, an amount of methamphetamine in excess

of 1.5 kilograms. Sent. Hr’g Tr. at 13. 3 M r. Castro argues that the district court

erred when it engaged in fact finding, independent of the jury, to ascertain the

precise quantity of drugs for which he bore responsibility. This argument,

however, runs afoul of our precedent expressly permitting district courts to make

factual findings of drug quantities in exactly these circumstances. See, e.g.,

United States v. Hall, 473 F.3d 1295, 1312 (10th Cir. 2007) (“Because the post-

Booker Guidelines are discretionary, a district court may continue to find facts,

including drug quantity, by a preponderance of the evidence.”); see also United

States v. M agallanez, 408 F.3d 672, 685 (10th Cir. 2005) (district court may make

finding of drug quantity by preponderance of evidence for purposes of




      3
        In doing so, the court noted that M r. Castro might reasonably be held
accountable for all the drugs flowing through the conspiracy given his intimate
involvement in the scheme, though it eventually chose to follow a more modest
course. Sent. Hr’g Tr. at 13.

                                         - 10 -
determining guidelines range even where jury found lesser amount). Affirmed.



                                     ENTERED FOR THE COURT



                                     Neil M . Gorsuch
                                     Circuit Judge




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