                                                                                F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                 MAY 8 1998
                                    TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 97-2130
 LUIS MIGUEL PIS,                                      (D.C. No. CR-96-466-SC)
                                                              (D. N.M.)
           Defendant-Appellant.




                                 ORDER AND JUDGMENT*


Before BALDOCK, EBEL, and MURPHY, Circuit Judges.**


       A jury convicted Defendant Luis Miguel Pis of one count of conspiracy to

distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 846; one count

of possession with intent to distribute more than five grams of cocaine base, in violation

of 21 U.S.C. § 841(b)(1)(B); and one count of maintaining a place for the purpose of


       *
          This order and judgment is not binding precedent, except under the doctrines of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.
       **
         After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
distributing and using a controlled substance, in violation of 21 U.S.C. § 856. The district

court sentenced Defendant to concurrent 63-month sentences on each count, followed by

a four-year term of supervised release. Our jurisdiction arises under 28 U.S.C. § 1291.

       Defendant argues that the evidence in this case was insufficient to sustain his

conviction. We consider a challenge to the sufficiency of the evidence by reviewing the

entire record, considering the evidence in the light most favorable to the government, to

determine whether the evidence is such that any reasonable jury could find Defendant

guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317 (1979); United

States v. Edwards, 69 F.3d 419, 430 (10th Cir. 1995). Applying this standard, we affirm.

       First, Defendant argues that the government failed to prove a criminal conspiracy.

The indictment charged that Defendant and Luis Antonio Castenada1 conspired to possess

with the intent to distribute more than five grams of cocaine base. In order to prove that

Defendant was guilty of conspiracy, the government was required to show: “(1) [an]

agreement with another person to violate the law; (2) knowledge of the essential

objectives of the conspiracy; (3) knowing and voluntary involvement; and (4)

interdependence among the alleged co-conspirators.”2 United States v. Johnson, 12 F.3d

1540, 1545 (10th Cir. 1993). The government must show that Defendant had a “general

awareness of both the scope and objective” of the conspiracy, United States v. Evans, 970

       1
           Castenada was a fugitive at the time of trial.

       Proof of an overt act is not required to establish a conspiracy under 21 U.S.C.
       2

§ 846. United States v. Williamson, 53 F.3d 1500, 1516 n.9 (10th Cir. 1995).

                                                2
F.2d 663, 670 (10th Cir. 1992), and that there was a “meeting of the minds” between co-

conspirators regarding the purpose and scope of the conspiracy. United States v.

Anderson, 981 F.2d 1560, 1563 (10th Cir. 1992).

       After reviewing the record, we conclude that the evidence presented at trial was

sufficient to establish the elements of a conspiracy. On October 3, 1995, after receiving

numerous complaints of narcotics activity at the Relax Motel, the Albuquerque Police

Department conducted a surveillance of rooms 16 and 17. Officers observed individuals

exiting room 16 and making hand-to-hand exchanges with other individuals outside the

Relax Motel. In a period of approximately 45 minutes, six or seven transactions occurred.

On October 4, 1995, officers executed a search warrant and found 15.7 grams of crack

cocaine in room 16, an amount Officer John Jaramillo testified was consistent with drug

sales. The drugs were found in a prescription bottle on the dresser and in another

prescription bottle under the bathroom sink. Defendant and co-defendant Castenada

were present in the room when the search took place. Defendant admitted to renting the

room2, and Relax Motel records show that Defendant was the registered tenant of room

16 from October 1 to October 4. During the search, $300 in cash was found on

Defendant. Although Defendant was not identified as one of the individuals who sold

drugs on October 3, the sellers came from the room which Defendant rented. Defendant


       2
         Although Defendant later denied making this statement to Officer John Jaramillo,
credibility questions are resolved in favor of the jury’s verdict. United States v. Pappert,
112 F.3d 1073, 1077 (10th Cir. 1997).

                                             3
was found in this same room on October 4 with crack cocaine in plain view and $300 in

his possession. We conclude that based on this evidence, a reasonable jury could find

that Defendant conspired to distribute cocaine base. See United States v. Johnson, 42

F.3d 1312, 1319 (10th Cir. 1994) (jury may infer an agreement constituting a conspiracy

“from the acts of the parties and other circumstantial evidence indicating concert of action

for the accomplishment of a common purpose”).

       Second, Defendant argues that the government failed to prove that he possessed

cocaine with the intent to distribute. Defendant argues that the evidence did not show

that he distributed or was actually in control of the drugs. In order to support Defendant’s

conviction, the government must prove knowing possession of a controlled substance,

with intent to distribute. United States v. Verners, 53 F.3d 291, 294 (10th Cir. 1995).

Possession may be actual or constructive. Id. We have defined constructive possession

as “an appreciable ability to guide the destiny of the drug.” United States v. Culpepper,

834 F.2d 879, 881 (10th Cir. 1987). Constructive possession may be established by

circumstantial evidence. Id. at 882.

       We have previously held that a defendant’s occupation of, or exercise of dominion

and control, over the place where the drugs were located is sufficient to establish

constructive possession. See United States v. Simpson, 94 F.3d 1373, 1380 (10th Cir.

1996); Verners, 53 F.3d at 294. In this case, the government offered evidence that

Defendant was arrested in room 16 where two prescription bottles filled with crack


                                             4
cocaine were found. The arresting officers testified that at the time of his arrest,

Defendant identified himself as Luis Miguel Pis.3 Defendant admitted that he had rented

room 16. Furthermore, the name “Luis Miguel Pis” was on the registration card for room

16 of the Relax Motel. From the evidence presented, a rational jury could reasonably

conclude that Defendant exercised dominion or control over the hotel room in which the

drugs were found, and therefore was in constructive possession of the crack cocaine.

       The government also offered sufficient evidence of intent to distribute. In room

16, the officers found 97 “rocks” of cocaine and $300 in currency. The arresting officer

testified that this was “a large amount of . . . crack cocaine for an individual to have

unless it is being trafficked or sold.” See Verners, 53 F.3d at 294 (testimony that amount

of cocaine in excess of amount normally possessed for personal use supports reasonable

inference of intent to distribute). In addition, the day before the search warrant was

executed, officers observed individuals exiting room 16 and making hand-to-hand

exchanges with other individuals outside the Relax Motel. In light of this evidence, a

reasonable jury could conclude that Defendant was involved in the distribution of crack

cocaine. Therefore, we conclude that the evidence was sufficient to sustain Defendant’s

conviction for possession with intent to distribute.



       3
         Although Defendant testified at trial that his name was Rolando Morales Duran,
not Luis Miguel Pis, and that he told the arresting officers that his name was Rolando
Morales Duran, he does not deny being present in the Relax Motel on October 4, 1995 or
that he was the individual police arrested.

                                              5
       Finally, Defendant argues that there was insufficient evidence to sustain his

conviction for maintaining a place for the distribution and use of controlled substances.

In order to convict someone of violating this statute, the government must prove that

Defendant knowingly opened or maintained a place for the purpose of “manufacturing by

repackaging, distributing, or using any controlled substance.” Verners, 53 F.3d at 295.

Defendant admitted that he rented the hotel room and the registration card showed that he

was the occupant. Based on this evidence, a rational jury could have concluded that

Defendant was more than a casual visitor to the hotel room and had a substantial

connection to, and control over, the room. See Id. at 296 (in order to “maintain”

premises, a defendant must have a “substantial connection” and be more than a “casual

visitor”).

       The evidence was also sufficient to established that Defendant maintained the

hotel room for the purpose of distributing drugs. Defendant was the registered tenant of a

hotel room where officers had observed drug transactions and found crack cocaine and a

crack pipe. Furthermore, when Defendant was arrested, he had $300 in currency in his

pocket. See Verners, 53 F.3d at 297 (the presence of profits, either in cash or

merchandise, may establish that a place is being used “for the purpose of” distributing

controlled substances).




                                             6
       Accordingly, Defendants’ convictions for conspiracy, possession with intent to

distribute, and maintaining a place for the purpose of distributing and using a controlled

substance is

       AFFIRMED.

                                                 Entered for the Court,



                                                 Bobby R. Baldock
                                                 Circuit Judge




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