                                                                                  FILED
                                                                      United States Court of Appeals
                                                                              Tenth Circuit

                                                                             April 8, 2010
                         UNITED STATES COURT OF APPEALS
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
                                     TENTH CIRCUIT




 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
                                                               No. 08-8044
 v.                                                 (D.C. No. 2:07-CR-00007-WFD-3)
                                                                (D. Wyo.)
 JOSE ALATORRE-GUEVARA,

           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before TACHA, SEYMOUR, and LUCERO, Circuit Judges.



          Jose Alatorre-Guevara was convicted on one count of conspiracy to possess

methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 846, 841(a), and

841(b)(1)(A)(viii). On appeal, he challenges his criminal conviction and resulting

sentence. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we

affirm.

          * This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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. 32.1.
                                             I

       Alatorre-Guevara was charged in a four-count indictment, which also charged

Pablo Corrales-Cardenas, Lorenzo Alatorre-Guevara (“Lorenzo”), and a fourth defendant

with involvement in a methamphetamine distribution scheme. All except Alatorre-

Guevara pled guilty pursuant to plea agreements with the government.

       Shortly before trial, the government learned that Paul Ontiveros, a local

methamphetamine dealer, had information relevant to Alatorre-Guevara’s case. Defense

counsel was notified of Ontiveros’ status as a potential witness on May 2, 2007, and was

provided with a proffer of his anticipated testimony on the first day of trial, May 7, 2007.

Over defense counsel’s objection, Ontiveros was allowed to testify.1

       At the close of evidence, the district court held a James hearing. See generally

United States v. James, 590 F.2d 575, 579-80 (5th Cir. 1979) (judge determines if co-

conspirator statements are admissible), abrogated in part by Bourjaily v. United States,

483 U.S. 171, 175-76 (1987) (factual determinations regarding admissibility of co-

conspirator statements are made using a preponderance of the evidence standard). It

determined that certain out-of-court statements, which would otherwise be barred as

hearsay, constituted co-conspirator statements and were therefore admissible pursuant to

Federal Rule of Evidence 801(d)(2)(E). The jury ultimately convicted Alatorre-Guevara.


       1
       Defense counsel also filed a motion in limine objecting to Ontiveros’ testimony.
That motion was denied.


                                            -2-
       Alatorre-Guevara subsequently filed a motion for a new trial, arguing that the

district court improperly permitted Ontiveros to testify. That motion was denied and

Alatorre-Guevara was sentenced to 151 months’ imprisonment. Alatorre-Guevara timely

appealed.

                                              II

       Alatorre-Guevara’s first argument is that the district court improperly admitted co-

conspirator statements. Because Alatorre-Guevara did not object to the admission of

these statements, we review for plain error. See Fed. R. Crim. P. 52(b); United States v.

Hill, 60 F.3d 672, 675 (10th Cir. 1995) (applying plain error review when defendant did

not contemporaneously object to testimony when it was offered at trial). “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. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005)

(quotation omitted).

       Co-conspirator statements do not constitute hearsay under Rule 801(d)(2)(E) and

may properly be admitted if a court determines that: “(1) a conspiracy existed; (2) the

declarant and the defendant were members of the conspiracy; and (3) the statements were

made in the course of and in furtherance of the conspiracy.” United States v. Lopez-

Gutierrez, 83 F.3d 1235, 1242 (10th Cir. 1996).

       Our review of the record reveals that the district court did not commit plain error

by admitting the statements of Alatorre-Guevara’s alleged co-conspirators. All three co-
                                             -3-
conspirators pled guilty to conspiracy to distribute methamphetamine prior to Alatorre-

Guevara’s trial, and two declared under oath that Alatorre-Guevara was part of this

conspiracy.2 A confidential informant also linked Alatorre-Guevara to the distribution

scheme and testified that Alatorre-Guevara had admitted to delivering drugs to Shoshoni,

Wyoming. All the statements made by the alleged co-conspirators were made in the

course of and in furtherance of the conspiracy. Accordingly, the district court’s

determination that the statements at issue satisfied the three requirements of Rule

801(d)(2)(E) was proper.

                                             III

       Alatorre-Guevara also argues that the district court violated the Jencks Act by

failing to strike Ontiveros’ testimony. Under the Jencks Act, after a government witness

has testified on direct examination against a criminal defendant, the government must

disclose statements of that witness in its possession that relate to the subject matter of the

witness’s testimony. 18 U.S.C. § 3500(b). If the United States refuses to produce such

statements, the court must strike the witness’s testimony. § 3500(d).

       During trial, the prosecution learned that Ontiveros had previously made a proffer

in an unrelated conspiracy. Ontiveros had also been the subject of twenty-one tape

recorded telephone calls. Alatorre-Guevara alleges that “[t]he government’s failure to

       2
        Corrales-Cardenas testified against Alatorre-Guevara at trial. At his plea
hearing, Lorenzo admitted that his brother was a co-conspirator in the distribution
scheme. He later recanted that statement during Alatorre-Guevara’s trial.


                                             -4-
provide the twenty-one wiretaps and the second set of agent’s [sic] notes amounted to its

electing not to comply with the court’s orders that it do so and with the Jencks Act itself.”

       We disagree. An agent’s summary of an oral statement that the witness has not

signed or adopted is not a statement as defined in the Jencks Act. § 3500(e); see also

Palermo v. United States, 360 U.S. 343, 352-53 (1959); United States v. Marshall, 985

F.2d 901, 908 (7th Cir. 1993). Alatorre-Guevara does not allege that Ontiveros signed or

adopted the agent’s notes. In addition, Alatorre-Guevara is not mentioned in these notes

or in the taped telephone calls. These materials pertained to a separate conspiracy and

were not relevant to the case at hand.

                                             IV

       Alatorre-Guevara’s final argument is that the district court erred in its sentencing

determination. We review a district court’s sentencing determination for abuse of

discretion. Gall v. United States, 552 U.S. 38, 51 (2007). A sentencing court abuses its

discretion if it imposes a sentence that is procedurally or substantively unreasonable in

light of the factors found in 18 U.S.C. § 3553(a). United States v. Geiner, 498 F.3d 1104,

1107 (10th Cir. 2007). Because Alatorre-Guevara does not allege procedural error, we

determine his sentence’s substantive reasonableness in reference to the totality of the

circumstances. Gall, 552 U.S. at 51. This substantive review focuses on whether the trial

court abused its discretion in determining that the § 3553(a) factors supported the

sentence. Id. “If the sentence is within the [applicable Sentencing] Guidelines range, the

appellate court may, but is not required to, apply a presumption of reasonableness.” Id.
                                            -5-
       Alatorre-Guevara argues that the district court did not make adequate factual

findings and failed to consider avoiding unwarranted sentencing disparities when it

imposed his sentence. But the district court properly based Alatorre-Guevara’s sentence

on the quantity of methamphetamine seized from his co-conspirators. See United States

v. Arias-Santos, 39 F.3d 1070, 1078 (10th Cir. 1994) (a defendant convicted of

conspiracy to possess with intent to distribute is accountable for sentencing purposes for

“that drug quantity which was within the scope of the agreement and reasonably

foreseeable to [him]”). This quantity totaled over 1,800 grams. Further, Alatorre-

Guevara received a sentence at the bottom of the applicable Guidelines range. Any

sentencing disparities between Alatorre-Guevara and his co-defendants arose because his

co-defendants accepted plea bargains, whereas Alatorre-Guevara refused to cooperate

with the government, even after his conviction. Alatorre-Guevara’s sentence was

therefore reasonable.

                                            V

       For the reasons stated above, we AFFIRM Alatorre-Guevara’s criminal

conviction and resulting sentence.

                                                 Entered for the Court


                                                 Carlos F. Lucero
                                                 Circuit Judge




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