                                                                          F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                     November 29, 2006
                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court


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

               Plaintiff-Appellee,                       No. 05-3103
          v.                                              (D . of Kan.)
 NOE ESPINO, JR., also known as               (D.C. No. 03-CR-20051-08-JW L)
 Junior,

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before M cCO NNELL, B AL DOCK , and TYM KOVICH, Circuit Judges.


      Noe Espino appeals his jury conviction for drug conspiracy charges arising

from a methamphetamine distribution ring in Kansas City, Kansas. He argues

three issues on appeal: (1) the evidence presented at trial was insufficient to

support his conviction; (2) the district court improperly admitted evidence of a




      *
        Appellant’s motion to submit on briefs was granted after the panel
examined the briefs and the appellate record to determine unanimously that oral
argument w ould not be of material assistance in the determination of this appeal.
See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
murder on the basis it was connected to the drug conspiracy; and (3) the sentence

imposed by the district court violated his Sixth Amendment rights. 1

      W e AFFIRM the jury’s verdict on sufficiency grounds, and the district

court’s decision to admit the murder evidence. W e also A FFIRM the Espino’s

sentence as constitutional.

                                I. Background

      Espino was indicted on drug conspiracy charges in 2003, and tried along

with two co-defendants, Carlos Portillo-Quezada and Kenneth W aterbury. The

government contended the three men were part of a large-scale methamphetamine

distribution ring in Kansas City, Kansas. After a jury trial, Espino was convicted

of conspiracy to distribute in excess of 500 grams of methamphetamine in

violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii) and 846.

Portillo-Q uezada and W aterbury were also convicted on drug distribution charges.



      1
          Espino’s notice of appeal referred to “all motions and objections”
presented at trial. Two of the post-trial motions— for acquittal under Rule 29, and
for a new trial under Rule 33— were untimely filed. W hile the district court
considered them on the merits, it should not have. The government objected to
the motions as untimely, and under the United States Supreme Court’s decision in
Eberhart v. United States, 546 U.S. 12 (2005), the motions should have been
dismissed. In this appeal, however, Espino elsewhere preserved his sufficiency of
evidence objection and evidentiary objection. Espino made a proper Rule 29
motion for acquittal at the close of the prosecution’s case, and elected not to
present evidence in his defense. That objection adequately preserved his right to
appeal the sufficiency of the government’s case against him. United States v.
Calderon, 348 U.S. 160 (1954); United States v. Delgado-Uribe, 363 F.3d 1077,
1081–83 (10th Cir. 2004). He objected to the murder evidence in a motion prior
to trial and at the time the evidence was received by the trial court.

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W e have upheld both of those convictions, see United States v. Portillo-Quezada,

___ F.3d ___ (10th Cir. 2006); United States v. Waterbury, ___ F’A ppx. ____.

M any of the background facts outlined in those cases are pertinent to Espino’s

claims on appeal, and will be repeated only as necessary.

      To summarize, at trial the prosecution contended that Portillo-Quezada

managed a large scale drug distribution operation along w ith his two brothers,

Eloy and Raul Portillo. W aterbury was a buyer and seller of drugs, who also

assisted the conspiracy by helping customers locate and visit “storefront”

properties w here drugs were distributed. Numerous other individuals were

involved in the production, distribution, and delivery of the drugs. Espino

performed at least two functions for the conspiracy: (1) he assisted in buying and

selling drugs; and (2) he played an enforcement role in the conspiracy, including

participation in a murder against a person who had stolen drugs from the

conspiracy and had disclosed the identity of a co-conspirator to police

investigators. The case against Espino consisted of the testimony co-conspirators,

as w ell as his confession to taking part in the murder.

                                  II. Discussion

A. Sufficiency of the Evidence

      Espino first argues that the evidence presented at trial was insufficient for a

reasonable jury to find him guilty of conspiracy to possess and distribute drugs.

W e review sufficiency of the evidence de novo, United States v. Wiseman, 172

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F.3d 1196 (10th Cir. 1999), and weigh the evidence presented in the light most

favorable to the verdict. The test is whether a reasonable jury could conclude the

defendant w as guilty beyond a reasonable doubt. United States v. M cIntosh, 124

F.3d 1330, 1334 (10th Cir. 1997). W e defer to the jury’s credibility

determinations and “its conclusions about the weight of the evidence.” United

States v. Allen, 235 F.3d 482, 492 (10th Cir. 2000). A reasonable jury can find a

defendant guilty beyond a reasonable doubt in light of both “‘the direct and

circumstantial evidence, along with reasonable inferences therefrom.’” United

States v. Nguyen, 413 F.3d 1170, 1175 (10th Cir. 2005) (quoting United States v.

Nelson, 383 F.3d 1227, 1229 (10th Cir. 2004)). Because Espino did not present a

defense, we review the record as it existed at the close of the government’s case.

See United States v. Delgado-Uribe, 363 F.3d 1077, 1082 (10th Cir. 2004).

      To prove conspiracy, the government must show Espino: (1) agreed with

others to engage in drug distribution; (2) knew about the existence of the

conspiracy; (3) participated voluntarily; and (4) was interdependent with other co-

conspirators. Delgado-Uribe, 363 F.3d at 1083. Espino argues that the

government’s evidence was insufficient to prove the second and third elements of

conspiracy— that he knowingly and voluntarily participated in the

methamphetamine distribution ring. Viewing the evidence in the light most

favorable to the jury’s verdict, we disagree.




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      Espino argues that the prosecution presented no direct evidence of his

participation in the conspiracy, and that the circumstantial evidence presented was

not substantial. The prosecution’s theory, in contrast, was that Espino served the

conspiracy by buying and selling drugs, and enforcing discipline on its behalf.

      At trial, the prosecution presented the testimony of Carl Rieger,a principal

deputy of Portillo-Quezada’s who assisted the conspiracy by renting properties

for drug distribution, handling money generated by sales, and buying and selling

drugs. Rieger was, in short, intimately involved in the conspiracy. He testified

that Espino was both known to purchase large quantities of drugs on a repeated

basis and known as a “regular distributor” for the Portillo-Quezada

methamphetamine ring. Supp. Vol. IV at 72–73, 197. He participated, along with

Portillo-Quezada, in drug transactions where Espino was present. Espino was a

frequent visitor to the rental house where the conspiracy distributed drugs. He

observed Espino brandishing weapons during drug transactions.

      Another co-conspirator, Patrick Loffredo, testified that he first met Espino

when he and another co-conspirator picked up methamphetamine from Espino.

Tommy Davidson, another co-conspirator, testified at trial that Espino was

sometimes present in a Portillo-Q uezada property during drug transactions.

Davidson told the jury that Espino would watch the transactions while holding

weapons, and that he interpreted this behavior as intended to intimidate drug

buyers.

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      M ore directly, the jury heard evidence that Espino confessed to his

participation in the murder of Bruce Andrews. Police suspected Andrews had

been killed by the Portillo-Quezada drug ring because he had stolen drugs from

the conspiracy and revealed the identity of Portillo-Q uezada’s brother to police.

Espino voluntarily confessed to his role in the crime after surrendering to police

several days after the police had raided a drug “storefront” and arrested Portillo-

Q uezada and Waterbury. In his confession, he told police he helped lure Andrew s

to the scene of the murder, watched as Portillo-Quezada killed him with an assault

weapon, helped clean the car and took it to a different location where it was

burned. Andrews’s body was left at the scene of the murder to be found.

Prosecutors contended at trial that the murder furthered the objectives of the

conspiracy and was designed to intimidate others who may have wished to steal

drugs or cooperate with police.

      Espino’s role in the murder was corroborated by other witnesses, including

Rieger. He testified Portillo-Quezada told him that Espino was paid in $4000 in

cash and stolen car parts for his role in the murder. Portillo-Quezada’s role as the

triggerman w as confirmed by the testimony of other witnesses.

      A jury may rationally infer the existence of a conspiracy to distribute drugs

on the basis of frequent contacts among co-conspirators and from “their joint

appearances at transactions and negotiations.” United States v. Evans, 970 F.2d

663, 669 (10th Cir. 1992). M oreover, a jury may convict a defendant of

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conspiracy on the uncorroborated testimony of a single co-conspirator, so long as

the jury is properly instructed. United States v. M agallanez, 408 F.3d 672, 682

(10th Cir. 2005), cert. denied, 126 S. Ct. 468 (2005). Once the existence of a

conspiracy is shown, an individual conspirator’s connection to the enterprise need

only be “slight, if there is sufficient evidence to establish a connection beyond a

reasonable doubt.” United States v. M endoza-Salgado, 964 F.2d 993, 1006 (10th

Cir. 1992).

      Viewed in the light most favorable to the jury, the connection between

Espino and the Portillo-Q uezada drug distribution ring is more than slight.

Evidence was presented that Espino was known to distribute methamphetamine

for Portillo-Quezada, that his role in the conspiracy was understood to be that of

an enforcer, and that he pursued this role to the point of furthering the

conspiracy’s interest through murder. On this record, a rational jury could

conclude Espino’s participation in the conspiracy was knowing and voluntary.

      Accordingly, we affirm the district court’s denial of Espino’s motion for

judgment of acquittal.

B. M urder Evidence

       Prior to trial, Espino filed a motion in limine to prevent the presentation of

testimony and evidence regarding Andrews’s murder, arguing that admission of

such evidence at trial would violate Federal Rule of Evidence 404(b). The district

court denied this motion before trial, holding that the evidence was inherent to the

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conspiracy and therefore not subject to Rule 404(b). At trial Espino renewed his

objection and sought a mistrial claiming that the graphic nature of some of the

evidence was irrelevant and unduly prejudicial, and sought a mistrial.

      On appeal, Espino renews these arguments. The government contends that

the murder was an integral part of the conspiracy. Portillo-Quezada believed that

Andrews had stolen drugs from the conspiracy and had revealed the identity of his

brother to police. In their view, the murder evidence showed the extent to which

the conspirators would go in collecting debts and punishing those who crossed the

organization.

      In a companion case, United States v. Portillo-Quezada, ___ F.3d ___ (10th

Cir 2006), we reviewed the admissibility of the murder evidence. For the same

reasons, we conclude the district court did not err in admitting the evidence or

declining to declare a mistrial. In sum, (1) the evidence was admissible as

uncharged acts committed in furtherance of the conspiracy; (2) the evidence was

intrinsic to the drug conspiracy, showing steps the conspirators w ould take to

collect debts and punish cooperation with police; and (3) in context, the testimony

was not unduly prejudicial.

      Accordingly, the district court did not err in admitting the evidence and

refusing to declare a mistrial.

C. Sentencing Error




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      Espino also argues that the sentence imposed by the district court violates

his Sixth Amendment rights. W e review his claim de novo. United States v. Doe,

298 F.3d 1254 (10th Cir. 2005).

      At sentencing, the district court increased Espino’s sentence to life in

prison because of his participation in the murder of Bruce A ndrew s. The court

stated that the sentencing factors laid out in 18 U.S.C. § 3553(a), and especially

§ 3553(a)(2) (concerning the need for the sentence imposed to reflect the

seriousness of the offense), made a life sentence reasonable and just in light of

the circumstances surrounding the crime. See USSG §§ 2D1.1(d)(1) and 2A1.1.

      Espino argues his sentence violates the Sixth Amendment because the

enhancement was based upon his participation in a murder (1) for which he was

never charged, and (2) that was never proven to a jury beyond a reasonable doubt.

He argues this conflicts with United States v. Booker, 543 U.S. 220 (2005), where

the Supreme Court held that the Sentencing Guidelines violate the Sixth

Amendment to the extent they compulsorily require courts to enhance sentences

on the basis of judicial factfinding. Id. at 233–34. W e disagree.

      “W hen a trial judge exercises his discretion to select a specific sentence

within a defined range, the defendant has no right to a jury determination of the

facts the judge deems relevant.” Id.   In our cases interpreting Booker, we have

repeatedly recognized that sentence enhancements do not violate the Sixth

Amendment where the sentencing court applies the G uidelines in an advisory

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fashion. United States v. Bustamante, 454 F.3d 1200, 1202 (10th Cir. 2006);

United States v. Dalton, 409 F.3d 1247, 1252 (10th Cir. 2005); United States v.

M agallanez, 408 F.3d 672, 685 (10th Cir. 2005); United States v. Lawrence, 405

F.3d 888, 890 (10th Cir. 2005). In addition, after Booker, a properly-calculated

Guideline sentence is “entitled to a rebuttable presumption of reasonableness.”

United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam).

      In light of these holdings, no constitutional violation exists in this case.

Espino has no right to a jury determination of the facts the trial judge deems

relevant in arriving at his sentence, so long as that sentence is reasonable.

M oreover, it is abundantly clear from the record that Espino participated in

Andrews’s murder— the district court reviewed at sentencing his taped confession

detailing his role in the homicide. Since Espino’s sentence was within the

Guidelines range, it is presumptively reasonable under Kristl. Because Espino

has made no argument to rebut this presumption, we find his sentence reasonable

under 18 U.S.C. § 3553(a).

                                  III. Conclusion

      For the foregoing reasons, we AFFIRM the rulings of the district court.

                                                ENTERED FOR THE COURT

                                                PER CURIAM




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