                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0402n.06

                                        Nos. 18-5907/5908


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                          FILED
UNITED STATES OF AMERICA,                                                           Aug 02, 2019
                                                                                DEBORAH S. HUNT, Clerk
       Plaintiff-Appellant,

v.                                                     ON APPEAL FROM THE UNITED
                                                       STATES DISTRICT COURT FOR THE
IMANOL PINEDA PENALOZA; EFRAIN                         EASTERN DISTRICT OF KENTUCKY
VILLA VILLANUEVA,

       Defendants-Appellees.

                                                /



BEFORE:        SUHRHEINRICH, CLAY, and DONALD, Circuit Judges.

       CLAY, Circuit Judge. Defendant Imanol Penaloza appeals his sentence of 340 months

of imprisonment for conspiracy to distribute five kilograms or more of cocaine and possession

with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), and

846. Specifically, Penaloza challenges the district court’s: (1) calculation of his base offense level,

(2) application of a two-level firearm enhancement, and (3) application of a four-level leadership

enhancement. Defendant Efrain Villanueva appeals his conviction for conspiracy to distribute five

kilograms or more of cocaine in violation of 21 U.S.C. § 841(a)(1), and 846. For the following

reasons, we AFFIRM Penaloza’s sentence, and AFFIRM Villanueva’s conviction.
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                                        BACKGROUND

  I.   Procedural Facts

       On March 1, 2018, defendants Imanol Penaloza (“Penaloza”) and Efrain Villanueva

(“Villanueva”), along with Sergio Aguilar Piedra (“Piedra”), were indicted by a federal grand jury

for “conspir[ing] together and with others to distribute five kilograms or more of a mixture or

substance containing a detectable amount of cocaine, a Schedule II controlled substance,” in

violation of 21 U.S.C. §§ 841(a)(1), and 846. (R. 1 at PageID #1.) Additionally, the grand jury

indicted Penaloza, along with Piedra, for “possess[ion] with intent to distribute 500 grams or more

of a mixture or substance containing a detectable amount of cocaine, a Schedule II controlled

substance,” in violation of 21 U.S.C § 841(a)(1). (R. 1 at PageID #2.) Villanueva moved to sever

his case from Piedra’s case, and the district court denied that motion. (R. 31 at PageID #74–75.)

       Piedra pleaded guilty, (5:18-cr-00030-DCR-2, Doc. 40), so the district court held a joint

trial for Penaloza and Villanueva. (R. 60; R.61; R. 62.) At the close of the government’s case,

Villanueva’s attorney moved for a judgment of acquittal; however, he did not renew that motion

after presenting his evidence. (R. 62 at PageID #717, 54:16–18; R. 62 at PageID #727, 64:9–13;

R. 62 PageID #734, 71:17–19.) On May 23, 2018, a jury found Penaloza guilty of conspiracy to

distribute five or more kilograms of cocaine, and of possession with intent to distribute 500 grams

or more of cocaine. (R. 62 at PageID #786, 123:9–16, 123:25–124:7.) During the sentencing phase,

the presentence report calculated a base offense level of thirty-four for Penaloza. (R. 86 at PageID

#927; R. 101 at PageID #1054, 24:1–13.) Penaloza objected to the presentence report’s

recommended sentence enhancements, and after hearing arguments by both parties, the district

court overruled Penaloza’s objections. (R. 101 at PageID #1053, 23:23–25.) The district court



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imposed on Penaloza a two-level firearm enhancement, and a four-level leadership enhancement

for his role in the conspiracy. The district court sentenced Penaloza to 340 months of incarceration.

The jury found Villanueva guilty of conspiracy to distribute five kilograms or more of cocaine.

The district court sentenced Villanueva to 200 months of incarceration. Penaloza and Villanueva

filed timely notices of appeal to this Court.

    II.   Relevant Testimony Presented at Trial

                                                  Matt Evans

          Narcotics detective Matt Evans (“Detective Evans”) testified that the investigation

involving Penaloza and Villanueva began in 2015 as a part of the investigation of Serafin Villa

Gomez (“Gomez”). At the time, Detective Evans received information that Gomez was operating

a large-scale cocaine trafficking operation at a residence located on Lonan Court (“Lonan Court”),

in Lexington, Kentucky. Detective Evans witnessed Villanueva arrive and depart from Lonan

Court during the course of the investigation.

          Detective Evans obtained a search warrant for Lonan Court, and once executed, Penaloza,

among others, was present at the residence, sitting in the living room. During the search of the

residence, officers discovered and seized approximately five kilograms of cocaine from a cooler

in the garage, $100,100 in U.S. currency from a different cooler in the garage, $179,000 in U.S.

currency from a backpack in a bedroom closet, $96,000 in U.S. currency in another bag located in

the same closet, one firearm in each of the two bedrooms, for a total of two firearms, fifteen

kilograms of cocaine in a hidden compartment inside of the vehicle parked in the garage, and a

plethora of bulk packaging and processing materials.1 Analysts discovered Penaloza’s fingerprints


1
 Detective Evans inconsistently testified that the backpack contained either $179,000 or $197,000. The government
uses the $179,000 figure while Penaloza uses the higher $197,000 amount. This slight difference does not affect our
analysis of Penaloza’s attributable drug quantity.


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on the packaging that stored the $179,000 of U.S. currency. During the search, officers also found

Villanueva’s Mexican consular identification card and his passport.

                                            Troey Stout

       Agent Troey Stout (“Agent Stout”) testified about his involvement as the lead investigator

of Ciro Macias Martinez (“Martinez”). Agent Stout testified that Martinez was one of the leaders

of a major drug trafficking organization that had direct ties to Mexico, and that Martinez facilitated

large bulk shipments of cocaine and other drugs in the central Kentucky region, including

Lexington and Louisville. He described a complex scheme that involved Martinez collecting drug

proceeds and directing his wife, Brizeida Janett Sosa (“Sosa”), to launder the money using various

methods. Agent Stout testified that through his investigation of Martinez, he became aware of

Penaloza and Villanueva. Penaloza is Villanueva’s uncle.

       Agent Stout testified that Penaloza had a leadership role in the drug organization. See R.

61 at PageID #523, 65:3–5 (“Well, the significance of that too, I wanted to point this out, is that

Mr. Penaloza is acting as a leader in this role here. He gets the call and agrees to it, and he sends

somebody else to do it on his behalf.”); see also R. 61 at PageID #523, 65:1–5 (“Mr. Penaloza

says, ‘Right now, right now. I’ll tell the dude to wait for you over there at the house.’ It’s clear

who’s in charge. It’s clear that he’s the leadership role. He’s directing this.” He testified that

Penaloza was intercepted via wiretap on multiple occasions, one in which he arranged for Martinez

to pick up drug proceeds, and that Villanueva was not intercepted via wiretap. Agent Stout

identified four locations in Kentucky subject to his investigation that involved Penaloza and

Villanueva – The Los Tres Hermanos Tire Shop on Seventh Street in Louisville (“Tire Shop”), a

residence off of 39th Street in Louisville, a residence on Hazel Street in Louisville, and a residence

on Lonan Court in Lexington.



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       Agent Stout described surveillance video of Martinez waiting outside of the 39th Street

residence until Villanueva arrived to let him into the house. Agent Stout also described video of

two separate drug transactions where he subsequently directed local officers to pull over certain

vehicles involved after the transactions were complete. Villanueva was present in the related

vehicle and identified himself to officers on both occasions.

                                            Brian Reccius

       Officer Brian Reccius investigated the Tres Hermanos Tire Shop and conducted between

five and ten controlled purchases of drugs out of that location by utilizing informants. Officer

Reccius identified Penaloza and Villanueva during the course of the investigation of the Tire Shop,

and witnessed Penaloza and Villanueva at the Tire Shop on multiple occasions. Officer Reccius

testified that the investigation revealed that Penaloza was likely a boss in this drug trafficking ring

and that Villanueva likely performed tasks related to pickup and delivery of drugs and money.

                                        Brizeida Janett Sosa

       Brizeida Sosa (“Sosa”) is married to Martinez. During Martinez’s involvement in

trafficking drugs, Sosa’s role was to assist in laundering the money, which amounted to

approximately $2 million. Sosa witnessed Martinez deliver five to seven kilograms of cocaine to

Penaloza and Villanueva at the tire shop or a private residence on less than ten but more than five

separate occasions. Sosa also testified to Villanueva’s presence at a drug deal that took place

behind a bus station.

                                          Christopher Hill

       Special Agent Christopher Hill (“Special Agent Hill”) witnessed and recorded

Villanueva’s arrival at the residence on 39th Street and Villanueva’s opening of the front door to




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the residence for Martinez. Special Agent Hill witnessed Villanueva in conjunction with the drug

trafficking investigation on at least three other occasions.

                                           DISCUSSION

  I.   Imanol Penaloza

       Penaloza argues that the district court erred in determining the drug quantity attributable to

himself, and that the court erred in applying both of his sentence enhancements. He also argues

that a jury, not the sentencing judge, should have decided facts relevant to his sentencing.

We address each in turn.

           A. Sentencing Determination of Drug Quantity

                   1. Standard of review

       “We review for clear error the district court’s factual findings on drug quantity attributable

to a defendant for sentencing purposes.” United States v. Rios, 830 F.3d 403, 436 (6th Cir. 2016)

(quoting United States v. Darwich, 337 F.3d 645, 663 (6th Cir. 2003)). Under section 2D 1.1(c) of

the United States Sentencing Commission, Guidelines Manual (“Sentencing Guidelines”), the

district court must determine the quantity of drugs for which a defendant is responsible in order to

determine his or her base offense level. In determining the base offense level, sentencing courts

must consider quantities of drugs “that were part of the same course of conduct or common scheme

or plan as the offense of conviction.” USSG § 1B1.3(a)(2). When the quantity of drugs attributed

to a particular defendant is not precise, as is the case in this instance, the district court must “err

on the side of caution and may only hold a defendant accountable for a specific quantity for which

he is more likely than not actually responsible.” Rios, 830 F.3d at 436 (quoting United States v.

Johnson, 732 F.3d 577, 581 (6th Cir. 2013)).




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                   2. Analysis

       Penaloza argues there is insufficient evidence in the record to prove that he is responsible

for any more than twenty kilograms of cocaine. Accordingly, he argues that his base offense level

should not have been calculated at thirty-four, but instead thirty-two. He asserts that “[t]he Court

speculated, estimated and made assumptions that were at best not supported by the evidence and

at worse simply erroneous.” (Penaloza Br. at 23.) Upon review of the record, the district court did

not clearly err in estimating the drug quantity attributable to Penaloza.

       At the sentencing hearing, Penaloza objected to the drug quantity utilized to calculate his

base offense level contained in his presentence report. Under the Sentencing Guidelines, the court

“shall resolve disputed sentencing factors at a sentencing hearing in accordance with [Federal

Rules of Criminal Procedure 32(i)].” USSG § 6A1.3(b). Fed. R. Crim. P. 32(i)(3)(B) requires the

sentencing court to rule on all disputed portions of the presentence report, or to determine that a

ruling is unnecessary. Fed. R. Crim. P. 32(i)(3)(A) gives the court the option to “accept any

undisputed portion of the presentence report as a finding of fact.” Section 6A1.3(a) of the

Sentencing Guidelines allows a sentencing court to “consider[] relevant information without

regard to its admissibility under the rules of evidence applicable at trial, provided that the

information has sufficient indicia of reliability to support its probable accuracy.” See also United

States v. Stout, 599 F.3d 549, 558 (6th Cir. 2010).

       In this instance, the district court heard oral argument and overruled each of Penaloza’s

three objections to portions of the presentence report. After overruling Penaloza’s objections, the

district court adopted the findings contained in the presentence report. The presentence report

thoroughly describes Penaloza’s involvement in an international drug trafficking ring, and the




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report’s factual findings are supported by the evidence produced at trial. As such, the presentence

report’s findings exceed the minimum-indicia-of-reliability standard. See Stout, 599 F.3d at 558.

       In overruling Penaloza’s objection to the amount of cocaine attributed to Penaloza, the

district court found that a cocaine quantity in excess of fifty kilograms was “very, very clear.”

(R. 101 at PageID #1048, 18:9–12.) For this finding, the court relied upon the testimony of law

enforcement who conducted the search of the residence on Lonan Court, where Penaloza was

present at the time of search. Law enforcement officers and agents testified to the seizure of nearly

$400,000 in U.S. currency and approximately nineteen kilograms of cocaine. This testimony

supported the presentence report’s estimate that the search of the Lonan Court residence produced

an equivalent of approximately thirty-two kilograms of cocaine that is attributable to Penaloza.

Penaloza does not dispute the amount attributable to him from the Lonan Court residence.

       The district court also relied upon the testimony of Brizeida Sosa, who witnessed her

husband Martinez deliver five to seven kilograms of cocaine to Penaloza on less than ten but more

than five separate occasions. Sosa traveled to and from most drug transactions with her husband,

and was actively involved in the laundering of the beaucoup money received from those

transactions. From the drug quantity ranges Sosa provided at trial, the district court estimated

approximately seven to eight deliveries with an average of eight kilograms of cocaine per delivery,

for a total of fifty-six to sixty-four kilograms of additional drug quantity.

       We do not find the district court’s estimation to be a clear error. Sosa’s testimony regarding

Penaloza’s involvement with drug deliveries from Martinez is not only undisputed, but also meets

the minimum-indicia-of-reliability standard. See R. 62 at PageID #762, 98:12–18 (during closing

argument at trial, Penaloza’s attorney stated, “And interestingly enough the very last witness that

the government put on the stand, Ms. Sosa, and she was being very sincere with you. I take no –



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no problem with what she had to say here today.”) Penaloza summarily challenges the drug

quantity attributed to him, but does not identify how the district court’s findings are inconsistent

with the evidence at trial. Even if the district court would have taken the lowest number of each

range—five deliveries of five kilograms of cocaine—for a total of twenty-five additional

kilograms of cocaine, once added to the undisputed thirty-two kilograms from Lonan Court, the

court would have found Penaloza responsible for more than 50 kilograms of cocaine which equates

to a base offense level of thirty-four. USSG § 2D1.1(c)(3). Therefore, there was no clear error in

the district court’s finding that Penaloza can be held responsible for fifty to 150 kilograms of

cocaine.

             B. Sentencing Enhancement for Possession of a Dangerous Weapon

                     1. Standard of review

          This Circuit reviews a district court’s factual findings regarding the application of the

firearms enhancement for clear error. United States v. Benson, 591 F.3d 491, 504 (6th Cir. 2010).

The Sentencing Guidelines allow for a two-level base offense level increase “[i]f a dangerous

weapon (including a firearm) was possessed.” See USSG § 2D1.1(b)(1). If the government is

successful in proving by a preponderance of the evidence that “(1) the defendant actually or

constructively ‘possessed’ the weapon, and (2) such possession was during the commission of the

offense,” this Court shifts the burden onto the defendant for him or her to prove “that it was ‘clearly

improbable’ that the weapon [at issue] was connected to the offense.” United States v. Catalan,

499 F.3d 604, 606 (6th Cir. 2007) (quoting United States v. Hill, 79 F.3d 1477, 1485 (6th Cir.

1996)).




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                   2. Analysis

        Penaloza argues that there is insufficient evidence of a link between any firearms seized

during the investigation and Penaloza’s involvement in the conspiracy. At sentencing, Penaloza

argued against the enhancement on the basis that the firearm was well-hidden and unknown to

visitors to the home, including Penaloza. He does not develop this argument any further on appeal.

        The district court did not err when it applied the two-level sentence enhancement to

Penaloza’s sentence. The district court held that Penaloza constructively possessed a firearm to

further the conspiracy to distribute cocaine in Kentucky. This Court has held that “possession of a

gun by one coconspirator is attributable to another coconspirator if such possession constitutes

reasonably foreseeable conduct.” Catalan, 499 F.3d at 607 (quoting United States v. Cochran,

14 F.3d 1128, 1132 (6th Cir. 1994)); see also USSG § 1B1.3(a)(1)(B)(iii) (finding relevant conduct

in the conspiracy context conduct that is “reasonably foreseeable in connection with that criminal

activity”).

        To support the constructive possession holding, the district court relied upon the fact that

two guns and ammunition were found at the Lonan Court residence, Penaloza’s brother-in-law’s

home, and that the residence was used for drug-trafficking activities. The court stated:

        This was a drug distribution facility for receipt, packaging, repackaging of large
        quantities of drugs, and it would be foreseeable to all those present on a regular
        basis, and this defendant was, that firearms would be present to protect large
        quantities of drugs, as well as cash, and that would be typical for this type of …
        drug trafficking activity, and the firearms were of the nature, were the type of
        firearms that are typically found in these locations where large quantities of drugs
        are being processed and distributed. So I do find that the firearm was possessed, at
        least by another co-conspirator, and it is reasonably foreseeable to this defendant
        that the firearm, or firearms, were present.

(R. 101 at PageID #1052, 22:9–22.) We disagree with Penaloza’s assertion that “[t]he court made

no findings that support that [Penaloza] either actually or constructively possessed the firearm.”

(Penaloza Br. at 26.) Based on the aforementioned rationale supported by evidence presented at

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trial, the district court did not err in holding that the government met its burden in proving Penaloza

constructively possessed the firearms in relation to the conspiracy to distribute cocaine in

Kentucky.

           Although Penaloza argued at sentencing that one of the firearms was hidden and Penaloza

was unaware of the gun’s presence in the home, that is not the standard upon which this Court

applies. “Once the burden shifts to the defendant, he must demonstrate that it was ‘clearly

improbable’ that the weapon was connected to the offense.” United States v. Pryor, 842 F.3d 441,

453 (6th Cir. 2016). To determine the probability of a connection, this Court weighs the following

factors:

           (1) the type of firearm involved; (2) the accessibility of the weapon to the
           defendant; (3) the presence of ammunition; (4) the proximity of the weapon to illicit
           drugs, proceeds, or paraphernalia; (5) the defendant’s evidence concerning the use
           of the weapon; and (6) whether the defendant was actually engaged in drug-
           trafficking, rather than mere manufacturing or possession.

Id. (quoting United States v. Greeno, 679 F.3d 510, 515 (6th Cir. 2012)).

           In Penaloza’s case, the weapons recovered were a loaded Glock pistol and an unloaded

Phoenix Arms pistol (found near ammunition). In one bedroom, investigators found the Glock

pistol in close proximity to over $260,000 of U.S. currency. In a second bedroom, investigators

found the Phoenix Arms pistol in close proximity to ammunition, over $12,000 of U.S. currency,

and approximately 217 grams of cocaine. Investigators testified at trial that Penaloza was directly

involved in facilitating drug-trafficking activities in the conspiracy. Importantly, Penaloza did not

provide any evidence demonstrating that it was clearly improbable that the firearms were

connected to his drug offense and, thus, did not meet his burden. Accordingly, the district court’s

application of the Section 2D1.1(b)(1) dangerous weapon enhancement to Penaloza’s sentence

was not clearly erroneous.



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             C. Sentencing Enhancement for Leadership Position

                     1. Standard of review

          This Court reviews the legal conclusion that a person is an organizer or leader under

Section 3B1.1 deferentially, not de novo. United States v. Washington, 715 F.3d 975, 983 (6th Cir.

2013) (conclusively addressing previously unresolved standard of review regarding a district

court’s decision to apply the Section 3B1.1 sentencing enhancement).

                     2. Analysis

          Penaloza appeals the district court’s application of a four-level base offense level

enhancement under USSG § 3B1.1 for his role in the conspiracy. Penaloza acknowledges the jury’s

guilty verdict; however, he disputes the district court’s finding that he was a leader, claiming that

he was “at best, a participant.” (Penaloza Br. at 27.)

          The district court has the authority to increase a defendant’s base offense level by four

levels “if the defendant was an organizer or leader of a criminal activity that involved five or more

participants or was otherwise extensive.” USSG § 3B1.1(a). The Sentencing Guidelines

commentary provide additional guidance for courts evaluating whether a defendant qualifies as a

leader:

          Factors the court should consider include the exercise of decision making authority,
          the nature of participation in the commission of the offense, the recruitment of
          accomplices, the claimed right to a larger share of the fruits of the crime, the degree
          of participation in planning or organizing the offense, the nature and scope of the
          illegal activity, and the degree of control and authority exercised over others. There
          can, of course, be more than one person who qualifies as a leader or organizer of a
          criminal association or conspiracy.

USSG § 3B1.1, cmt. n. 4.

          We defer to the district court’s holding that Penaloza was a leader in this conspiracy that

involved at least five participants. The court found that Penaloza was responsible for relocating

the drug trafficking operation once the Lonan Court residence was raided and shut down as a base

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for the conspiracy. Penaloza relocated the operation to Louisville, and did so using the help of

other individuals named in the conspiracy. The court held that these facts supported a leadership

enhancement.

        Additionally, Agent Stout testified that Penaloza was a leader. The district court reviewed

the transcripts of the wiretaps of individuals in the conspiracy that were entered into evidence at

trial. The court found that after Penaloza received instructions from individuals in Mexico, the

requested tasks were completed. The district court addressed the number of individuals in the

conspiracy and named five participants. After applying the relevant Sentencing Guidelines factors

and evidence presented at trial, the district court held that Penaloza was a leader of the conspiracy

who directed the activities of participants, and accordingly applied the leadership enhancement.

Finding the district court’s analysis a sufficient application of the facts, we defer to its holding and

affirm the enhancement.

            D. Jury v. Judicial Determinations of Facts Underlying Sentence

        Penaloza argues that the district court erred when it evaluated facts that led to the

enhancement of his base offense level, and thus his overall sentence. He debates the appropriate

standard of proof and asserts that the jury, not the district court judge, should have decided the

exact quantity of drugs attributed to him, whether he constructively possessed a firearm, and

whether he was a leader in the conspiracy. However, Penaloza does not dispute either of his guilty

verdicts. Count 1 for which he was found guilty (Conspiracy to Distribute Five Kilograms or More

of Cocaine) has a statutory sentencing range of ten years to life imprisonment. See 21 U.S.C.

§ 841(b)(1)(A). Count II (Possession with the Intent to Distribute 500 Grams or More of Cocaine)

has a statutory sentencing range of five to forty years. See 21 U.S.C. § 841(b)(1)(B). It is well-

settled by the Supreme Court that “[o]ther than the fact of a prior conviction, any fact that increases



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the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); see also

Alleyne v. United States, 570 U.S. 99, 107–08 (2013).

       Under the circumstances of Penaloza’s case, the district court properly decided whether

Penaloza was subject to the aforementioned base offense level sentencing enhancements, including

the drug quantity attributed to Penaloza. The district court sentenced Penaloza to 340 months of

imprisonment, which is within Penaloza’s statutory range for both counts. No fact related to those

enhancements increased Penaloza’s penalty beyond the prescribed statutory maximum sentences

of forty years or life imprisonment. Thus, the facts were not required to be decided by a jury.

 II.   Efrain Villanueva

       Villanueva argues that there is insufficient evidence to support his conviction, and that the

district court erred by not providing the jury with a multiple conspiracy instruction. We address

each in turn.

           A. Sufficiency of the Evidence

                   1. Standard of review

       “[W]hen the sufficiency of the evidence is challenged on appeal, the standard of review is

whether, after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime[.]” United States v. Damra, 621

F.3d 474, 494 (6th Cir. 2010) (quoting United States v. Kuehne, 547 F.3d 667, 696 (6th Cir. 2008)).

However, in this instance we review Villanueva’s sufficiency challenge under the “manifest

miscarriage of justice” standard because Villanueva forfeited the challenge when he failed to

renew his Fed. R. Crim. P. 29(a) motion at the close of his presentation of evidence. Kuehne, 547

F.3d at 697; see also Villanueva Br. at 12 (conceding application of this standard). Under the



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“manifest miscarriage of justice” standard, this Court only reverses a conviction “if the record is

devoid of evidence pointing to guilt.” Id. (quoting United States v. Carnes, 309 F.3d 950, 956 (6th

Cir. 2002)).

                   2. Analysis

       Villanueva insists that there is no evidence that links him to the conspiracy other than his

physical proximity to his uncle (Penaloza) and parents (owners of Lonan Court residence) who

happened to be involved. The jury interpreted the government’s evidence against him differently,

and we do not disturb the jury’s credibility determinations on appeal. United States v. Phibbs,

999 F.2d. 1053, 1064 (6th Cir. 1993). The question here is whether the jury could find a legally

sufficient connection between Villanueva and the conspiracy. United States v. Deitz, 577 F.3d 672,

677 (6th Cir. 2009) (“To sustain a conviction for conspiracy under 21 U.S.C. § 846, the

government must have proved: (1) an agreement to violate drug laws, in this case 21 U.S.C. § 841;

(2) knowledge and intent to join the conspiracy; and (3) participation in the conspiracy.”).

       There are many instances in which the jury could have determined that Villanueva was a

knowing participant to the conspiracy. The jury was within their authority to rely upon

circumstantial evidence to convict a defendant of conspiracy, so there need not be a smoking gun

in the form of an express agreement. Id. (“The existence of a conspiracy may be inferred from

circumstantial evidence that can be reasonably interpreted as participation in the common plan.”)

(internal citations omitted). At trial, the jury heard from Detective Evans who witnessed

Villanueva come and go from the Lonan Court residence, where Villanueva’s consular

identification card and passport were found. As a part of the investigation of the conspiracy, Agent

Stout directed local officers to pull over certain vehicles leaving the drug transactions being

surveilled, and on two occasions Villanueva was either the driver or passenger of the vehicle.



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Officer Reccius testified that he witnessed Villanueva at the Tire Shop on multiple occasions

throughout the investigation, and believed Villanueva performed tasks related to receipt and

delivery of drugs and drug money. Brizeida Sosa testified that she witnessed her husband,

Martinez, deliver drugs to Villanueva at the Tire Shop on multiple occasions. Sosa also testified

that she saw Villanueva at a drug deal that took place behind a bus station. The jury also heard

testimony from Special Agent Hill, who recorded Villanueva letting Martinez into the 39th Street

residence. Special Agent Hill witnessed an unknown male arrive at the Tire Shop in a white truck,

unload what looked like iPhones, and hand one of the phones to Villanueva.

       We find that Villanueva has not overcome the high burden of proving that the record is

devoid of evidence pointing to his guilt. See Kuehne, 547 F.3d at 697. The jury could have based

its decision on any number of facts in the record evidencing Villanueva’s involvement in the

conspiracy. We therefore affirm the jury’s verdict convicting Villanueva of 21 U.S.C.

§§ 841(a)(1), and 846.

           B. Multiple Conspiracy Jury Instruction

       When reviewing a multiple conspiracy jury instruction to which a defendant failed to

request or object to at trial, such as the one at issue here, we review only for plain error. United

States v. Warner, 690 F.2d 545, 551 (6th Cir. 1982). A variance to an indictment occurs when “the

evidence at trial proves facts materially different from those alleged in the indictment.” United

States v. Caver, 470 F.3d 220, 235 (6th Cir. 2006) “Within the context of a conspiracy, a variance

constitutes reversible error only if a defendant demonstrates that he was prejudiced by the variance

and that the ‘indictment allege[d] one conspiracy, but the evidence can reasonably be construed

only as supporting a finding of multiple conspiracies.’” Id. at 235–36 (emphasis in original)

(quoting Warner, 690 F.2d at 548).



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       Essentially, Villanueva claims that multiple separate conspiracies existed, some of which

he was not involved in, and therefore the district court should have provided the jury with an

instruction explaining that he can only be held responsible for the conspiracy in which he

participated. Albeit not in a standalone section titled “multiple conspiracies,” the district court

instructed the jury “that each defendant is only on trial for the particular crimes charges in the

indictment. Your job is limited to deciding whether the government has proved the crimes

charged.”

       Villanueva was charged with conspiracy to distribute five kilograms or more of cocaine in

Fayette County, Kentucky, and other areas, between November 2015 and March 1, 2018. To the

extent there were other facets to the overall conspiracy to distribute cocaine in the state of

Kentucky, such as money laundering, inter alia, all facets discussed at Villanueva’s trial furthered

the conspiracy in which he participated. Evidence of other drug-trafficking related activities

provided context and background for the larger conspiracy. “[A] single conspiracy does not

become multiple conspiracies simply because each member of the conspiracy did not know every

other member, or because each member did not know of or become involved in all of the activities

in furtherance of the conspiracy.” Warner, 690 F.2d at 549.

       As we discussed in Villanueva’s sufficiency of the evidence challenge, the evidence at trial

fully supported his conviction. See Section II. A. of this opinion. Villanueva’s indictment alleges

one conspiracy, and the evidence cannot reasonably be construed only as supporting a finding of

multiple conspiracies. Caver, 470 F.3d at 235–36. The jury instructions the district court provided

adequately informed the jury that Villanueva could only be convicted of a conspiracy alleged in

the indictment of which he was a participant. See Warner, 690 F.2d at 551. Therefore, the trial




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court’s decision not to give such instruction in this case was not plain error and Villanueva was

not prejudiced.

                                         CONCLUSION

       In reference to Imanol Penaloza, the district court did not err in its calculation of the drug

quantity attributable to Penaloza. The court properly applied base offense level increases for

Penaloza’s constructive possession of a firearm, and for Penaloza’s leadership role in the

conspiracy. The district court, as opposed to a jury, was the proper adjudicator of facts related to

Penaloza’s attributable drug quantity and base level enhancements for sentencing purposes

because those facts did not increase his statutory maximum penalty. We therefore AFFIRM

Penaloza’s sentence.

       In reference to Efrain Villanueva, the evidence presented at trial sufficiently supported his

conviction. Additionally, the district court did not commit plain error by not providing the jury

with a multiple conspiracy instruction, as the evidence clearly supported one central conspiracy

theory. We therefore AFFIRM Villanueva’s conviction.




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