                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES COURT OF APPEALS                  October 23, 2008
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 07-4230
 JOEL SOTO,                                        (D.C. No. 07-CR-171-TC
                                                          (D. Utah)
          Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.



      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(G). The case is,

therefore, submitted without oral argument.

      A jury convicted Joel Soto (“Soto”) of one count of possession of 50 grams

or more of a controlled substance with intent to distribute in violation of 21


      *
        This order and judgment is not binding precedent, except under the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.
U.S.C. § 841(a)(1). Soto admitted that he possessed 75 grams of

methamphetamine. Only his intent to distribute was at issue during trial. At the

trial, law enforcement officers testified that the amount of drugs Soto possessed

was indicative of distribution. Soto contends that the district court erred by

allowing some of this testimony because the government did not qualify two of

the officers as expert witnesses. We have jurisdiction pursuant to 28 U.S.C. §

1291 and affirm.

                                            I

      On October 27, 2006, Soto was arrested for violating a protective order.

During a search of Soto’s car incident to his arrest, officers found approximately

75 grams of methamphetamine, a glass pipe, and $424 in cash.

      Soto was subsequently indicted on one count of possession of a controlled

substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1). After he

was convicted following a jury trial, the district court sentenced him to 151

months’ incarceration and 60 months’ supervised release.

                                            II

      Soto raises one evidentiary issue on appeal. Given Soto’s failure to object

to this issue at trial, we review for plain error. United States v. Harlow, 444 F.3d

1255, 1261 (10th Cir. 2006) (citing United States v. Magallanez, 408 F.3d 672,

679–80 (10th Cir. 2005)). To establish that the district court committed plain

error, Soto must establish: (1) error; (2) that is plain; (3) that affects substantial

                                            2
rights; and (4) that “seriously affected the fairness, integrity, or public reputation

of judicial proceedings.” Id. (quoting Jones v. United States, 527 U.S. 373, 389

(1999)).

      Soto challenges the admissibility of the opinion testimony of two police

officers: Officers Samuels and Manning. Soto contends the district court erred

by permitting these officers to provide opinion evidence that was not based on

common knowledge. Specifically, the officers testified that the amounts of

methamphetamine in Soto’s possession indicated an intent to distribute and

exceeded amounts a user of methamphetamine would possess for personal use.

The government did not designate or qualify these officers as expert witnesses.

Because Rules 701(c) and 702 of the Federal Rules of Evidence permit only

expert witnesses to provide opinion testimony based on specialized knowledge,

Soto argues that the district court plainly erred by admitting these portions of the

officers’ testimony.

      The government concedes that it did not offer the officers as expert

witnesses and that the testimony at issue qualifies as expert testimony under the

Federal Rules of Evidence. The government, however, argues that the district

court’s admission of the testimony was not error, and certainly not plain error. In

support of this argument, the government contends that the challenged testimony

was not prejudicial to Soto because it was “merely cumulative.” Applee. Br. at

20.

                                           3
      Because the government concedes that the officers’ testimony included

expert opinions despite the government’s failure to offer or qualify the officers as

experts, we proceed to address whether the admission of the testimony affected

Soto’s substantial rights. To show that the error affected his substantial rights,

Soto bears the burden of establishing that but for the error, the outcome of his

trial would have been different. Harlow, 444 F.3d at 1261 (citing United States v.

McHorse, 179 F.3d 889, 903 (10th Cir. 1999)).

      Soto’s defense at trial was that although he possessed methamphetamine,

his possession was only for personal use, and that he had no intent to distribute

the drug. Soto contends that the testimony of police officers relating the quantity

of drugs to the intent of the possessor is “highly damaging testimony.” Aplt. Br.

at 11. Soto, however, acknowledges that the presently-challenged testimony was

not the only evidence at trial suggesting that the quantity Soto possessed indicated

an intent to distribute. Consequently, he argues that:

      confirmation from multiple officers that the quantity of drugs in [his]
      possession shows intent to distribute could not help but be extremely
      compelling. . . . While [] Soto may have been able to call into
      question the testimony of one expert witness who had no personal
      experience with him and could speak only to general trends, the
      additional corroborative testimony of other officers with direct
      knowledge of the facts of [] Soto’s possession effectively prevented
      any attempt to challenge that opinion.

Id. at 11–12.

      Soto has not shown that had the district court excluded the expert testimony


                                          4
of Officers Samuels and Manning, the outcome of his trial would have been

different. Soto only suggests that he “may have been able” to challenge the

properly-admitted expert testimony of DEA Special Agent Bryan. As stated,

Soto’s sole defense was that he lacked the requisite intent to distribute. On the

record presented, there was sufficient evidence for the jury to conclude that Soto

had the requisite intent even if the jury would have ignored the opinion evidence

of Officers Samuels and Manning.

      The jury heard evidence that Soto possessed distribution-level quantities of

methamphetamine and that he did not manifest the characteristics of a

methamphetamine addict. Specifically, Soto conceded that he possessed

approximately 75 grams of methamphetamine. R. Vol. IV at 97–98. Special

Agent Bryan testified that a user of methamphetamine would purchase and

possess between one fourth of a gram and a gram. R. Vol. V at 189. In contrast,

Special Agent Bryan identified quantities exceeding 20 grams of

methamphetamine as “distribution amounts” and “not [] personal use amount[s].”

R. Vol. V at 197. Special Agent Bryan also identified items in

evidence—sandwich bags, or “baggies”—as packaging indicative of someone

involved in distributing drugs. Lastly, Special Agent Bryan described the

physical characteristics that are common for methamphetamine addicts—sores on

the skin, poor dental hygiene, and weight loss. According to testimony at the

trial, Soto did not exhibit these physical characteristics. Based on this evidence

                                          5
alone, and excluding the challenged portions of the testimony of Officers Samuels

and Manning, a jury could reasonably infer that Soto intended to distribute the

drugs in his possession. See United States v. Pulido-Jacobo, 377 F.3d 1124, 1131

(10th Cir. 2004) (“[A] jury may infer intent to distribute from the possession of

large quantities of drugs.”).

      Soto has not shown that but for the challenged opinion testimony, the

outcome of his trial would have been different.

      We affirm.


                                              Entered for the Court


                                              Mary Beck Briscoe
                                              Circuit Judge




                                          6
