                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                   December 11, 2007
                            FOR THE TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                      Clerk of Court

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                          No. 07-6006
    v.                                             (D.C. No. 06-CR-172-1-R)
                                                         (W.D. Okla.)
    ROSALIO O. HERNANDEZ,
    also known as Chalio,

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before TYMKOVICH, BALDOCK, and EBEL, Circuit Judges.



         A federal grand jury sitting in the Western District of Oklahoma returned a

three-count indictment against Rosalio O. Hernandez on federal drug trafficking

charges. Count 1 alleged that, from December 2001 through April 20, 2006,

Mr. Hernandez conspired with Jesus Adolfo Tinajero-Porras (Tinajero) and other

persons to possess with intent to distribute and to distribute 100 kilograms or


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant 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
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
more of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. 1 Count 2

alleged that, on or about July 4, 2002, Mr. Hernandez knowingly and intentionally

distributed approximately fifteen pounds of marijuana to a cooperating witness in

violation of 21 U.S.C. § 841(a)(1). Count 3 alleged that, on or about January 23,

2005, Mr. Hernandez used a telephone to facilitate the distribution of controlled

substances in violation of 21 U.S.C. § 843(b).

      Mr. Tinajero was separately indicted on eleven counts of violating the

federal drug trafficking laws. The cases against Mr. Hernandez and Mr. Tinajero

were consolidated for purposes of trial and tried jointly before a jury in

September 2006. 2

      At the conclusion of trial, the jury found Mr. Hernandez guilty of Count 1,

the conspiracy charge. It additionally made a specific factual finding that 100

kilograms or more of marijuana was involved in the conspiracy. 3 R., Vol. 1, Doc.

46. The jury found Mr. Hernandez not guilty of Count 2, the distribution charge,

but guilty of Count 3, the telephone facilitation charge. Id. In January 2007, the

district court sentenced Mr. Hernandez to a term of imprisonment of sixty-three


1
       In Count 1, Mr. Hernandez was also charged with conspiring to distribute
five kilograms or more of cocaine. With the agreement of the government and
before the case was submitted to the jury, the district court struck the cocaine
allegations from the indictment and verdict form.
2
      The charges against Mr. Tinajero are not at issue in this appeal.
3
      We note that one kilogram equals 2.2 pounds and that 100 kilograms
therefore equals 220 pounds.

                                         -2-
months on Count 1 and forty-eight months on Count 3, with the sentences to be

served concurrently. Id., Doc. 52 at 2. The district court calculated

Mr. Hernandez’s sentences based on the United States Sentencing Guidelines

(Guidelines), which the court recognized are “only advisory now,” id., Vol. 5

at 16, in light of the United States Supreme Court’s decision in United States v.

Booker, 543 U.S. 220 (2005).

      Mr. Hernandez is now appealing (1) his conviction and sentence on Count

1, the conspiracy charge, arguing insufficient evidence was presented to support

the jury’s verdict, and (2) the district court’s sentencing decision. Exercising

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

                                  I. Background.

      A. Evidence at Trial.

      In their respective briefs, the parties have thoroughly summarized the

evidence that was presented at trial pertaining to the charges against

Mr. Hernandez, and we see no need to duplicate their efforts here. In addition,

we note that Mr. Hernandez’s challenges to the sufficiency of the evidence are

narrowly focused on a single drug transaction that occurred in December 2001.

In his brief, Mr. Hernandez has summarized the evidence presented at trial

pertaining to that transaction as follows:

            Defendant’s only other alleged involvement in the conspiracy
      was based on evidence Tinajero used a cellular phone subscribed to
      Defendant to arrange for the transportation of marijuana by Angel

                                         -3-
       Henry Sosa in December, 2001. On December 12, 2001, Angel
       Henry Sosa was arrested in Texas, with 1,986 pounds of marijuana.
       Sosa testified that Tinajero asked him to transport the marijuana
       during a telephone conversation. Sosa also testified that he had
       obtained marijuana from Tinajero in Oklahoma City, but he never
       mentioned [Defendant]. Sosa provided authorities the telephone
       number used by Tinajero during their December, 2001,
       conversations, and that telephone number proved to have been
       subscribed in [Defendant’s] name, date of birth and social security
       number.

Aplt. Br. at 7.

       At sentencing, relying on the Sosa/Tinajero transaction in December 2001,

the district court found Mr. Hernandez accountable for 1,986 pounds or 902.7

kilograms of marijuana, and this additional drug quantity increased the base

offense level for the conspiracy conviction from 26 to 30. 4 The court also granted

a two level adjustment for Mr. Hernandez’s voluntary debriefings, and a two level

adjustment for minor role in the offense, resulting in a total adjusted offense level

of 26. Given that Mr. Hernandez had no prior criminal convictions and thus a

Criminal History Category of I, the Guidelines provided a sentencing range of

sixty-three to seventy-eight months for the conspiracy conviction, and the district

court imposed a sentence of sixty-three months.




4
       See U.S. Sentencing Guidelines Manual § 2D1.1(c)(7) (Nov. 1, 2006)
(providing a base offense level of 26 for drug conspiracies involving “[a]t least
100 KG but less than 400 KG of Marihuana”); id., § 2D1.1(c)(5) (providing a
base offense level of 30 for drug conspiracies involving “[a]t least 700 KG but
less than 1,000 KG of Marihuana”).

                                         -4-
      B. Arguments on Appeal.

      In this appeal, Mr. Hernandez has summarized his challenges to the

sufficiency of the evidence as follows:

             Defendant Hernandez submits that his participation in [the]
      1,986 pound marijuana offense in December 2001, based on
      Tinajero’s use of [a] telephone subscribed to [Defendant] to facilitate
      that offense, were overly conjectural, and did not prove his
      participation in that conspiracy either beyond a reasonable doubt or
      by a preponderance of the evidence.

             ....

             . . . [T]he facts in this case do not support a finding beyond a
      reasonable doubt that Defendant had anything to do with the . . .
      1,986 pound marijuana offense in 2001, apart from Tinajero’s use of
      his telephone, and, therefore, that he conspired to possess and
      distribute 100 kilograms or more of marijuana. Even if the evidence
      did support his conviction of conspiring to possess 100 kilograms of
      marijuana without the 1,986 pounds of marijuana, it did not prove by
      a preponderance of the evidence that the 1,986 pound possession was
      foreseeable to him. He respectfully applies to this Court for remand
      for resentencing.

Aplt. Br. at 8-9, 16.

      As set forth below, we agree with the government that there was sufficient

evidence presented at trial to support both Mr. Hernandez’s conspiracy conviction

and his sentence.

                                  II. Analysis.

      A. Sufficiency of the Evidence to Support the Jury’s Verdict.

      “Whether the government presented sufficient evidence to support a

conviction is a legal question we review de novo.” United States v. Dunmire, 403

                                          -5-
F.3d 722, 724 (10th Cir. 2005). “In undertaking our review, we consider the

record in the light most favorable to the government to determine whether a

reasonable jury could find guilt beyond a reasonable doubt, based on the direct

and circumstantial evidence, together with the reasonable inferences to be drawn

therefrom.” Id. (quotation omitted). Thus, “[w]e may reverse only if no rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” United States v. Brown, 400 F.3d 1242, 1247 (10th Cir. 2005)

(quotations omitted). This is a “restrictive standard of review,” and it “provides

us with very little leeway.” United States v. Evans, 970 F.2d 663, 671 (10th Cir.

1992).

         As noted above, the jury found Mr. Hernandez guilty of conspiring with

Mr. Tinajero to distribute 100 kilograms or more of marijuana in violation of 21

U.S.C. §§ 841(a)(1) and 846. To prove the drug trafficking conspiracy alleged in

this case, the government was required to prove that: “(1) [Mr. Hernandez]

agreed with [one] or more persons to import and possess with intent to distribute

100 kilograms or more of marijuana, (2) [Mr. Hernandez] knew at least the

essential objectives of the conspirac[y], (3) [Mr. Hernandez] knowingly and

voluntarily became a part of the conspirac[y], and (4) interdependence existed

among the alleged coconspirators.” United States v. Arras, 373 F.3d 1071, 1074

(10th Cir. 2004). “By necessity, the government may establish these elements by

direct or circumstantial evidence.” Evans, 970 F.2d at 668. But as we have

                                          -6-
repeatedly emphasized in our decisions in this area, “we cannot sustain a

conspiracy conviction if the evidence does no more than create a suspicion of

guilt or amounts to a conviction resulting from piling inference on top of

inference.” United States v. Horn, 946 F.2d 738, 741 (10th Cir. 1991).

      Assuming membership in the conspiracy is proven, however, the

government need not produce “evidence of direct participation in the commission

of [each] substantive offense or other evidence from which participation might

fairly be inferred.” Pinkerton v. United States, 328 U.S. 640, 646 (1946)

(rejecting holding in United States v. Sall, 116 F.2d 745 (3d Cir. 1940)). To the

contrary, as the district court instructed the jury in this case, the doctrine of

vicarious liability plays a critical role in the context of conspiracy cases. The

court’s vicarious liability instruction read as follows, and we note that

Mr. Hernandez did not object to the instruction:

             Every conspirator is guilty of the illegal acts that are done as
      part of and in furtherance of the conspiracy even though those acts
      are done solely by coconspirators. If you are satisfied beyond a
      reasonable doubt that, at the time an alleged offense was committed,
      a Defendant had entered into and continued to be a member of an
      unlawful conspiracy as I have defined that for you; and if you further
      find beyond a reasonable doubt that a coconspirator of the
      Defendant committed the offense while the conspiracy continued to
      exist and in furtherance of that unlawful conspiracy or as an object of
      that conspiracy, then you may find the Defendant guilty of that
      offense even though he was not the person who actually committed
      or personally aided and abetted in the commission of the offense.




                                           -7-
R., Vol. 1, Doc. 47 at 51; see also id. at 37 (jury instruction stating that “[o]nce a

person becomes a member of a conspiracy, he is held legally responsible for the

acts of the other members done in furtherance of the conspiracy, even though he

was not present or aware that the acts were being committed”); Evans, 970 F.2d at

678 n.20 (“Under Pinkerton, a defendant is liable for any crimes committed by a

coconspirator if those crimes (1) were within the scope of the conspiracy or

(2) were reasonably foreseen as a necessary or natural consequence of the

unlawful agreement.”) (citing 328 U.S. at 646-48).

      As the government has pointed out in its brief, Mr. Hernandez “does not

attack the conviction for conspiracy itself.” Aplee. Br. at 6. Instead, he is

attacking only “the jury’s finding that the conspiracy involved 100 kilograms or

more of marijuana, a finding that subjects [him] to a statutory penalty of not less

than 5 years nor more than 40 years of imprisonment under 21 U.S.C.

§ 841(b)(1)(B)(vii).” Aplee. Br. at 6. Having carefully reviewed the evidence put

forth by the government at trial, we conclude the jury’s finding that the

conspiracy involved 100 kilograms or more of marijuana was supported by the

evidence.

      To begin with, Brian Long testified at trial that, from 2000 through 2004,

he purchased large quantities of marijuana from Mr. Tinajero on a weekly basis

and then distributed the marijuana to third persons. R., Vol. 3 at 237-45. In

addition, Mr. Long identified Mr. Hernandez as a person he met through

                                          -8-
Mr. Tinajero, and he testified that Mr. Hernandez delivered marijuana to him on

behalf of Mr. Tinajero. Id. at 252-53. Specifically, Mr. Long testified that

Mr. Hernandez delivered approximately three to fifteen pounds of marijuana to

him at a time, three or four times a month from early 2000 to the latter part of

2002. Id. at 253. Even viewing this testimony conservatively (i.e., assuming it

involved only eight months in 2000 and eight months in 2002 for a total of

twenty-eight months, and that a total of only nine pounds of marijuana was being

delivered each month, for a total of 252 pounds or 114.5 kilograms), this evidence

was sufficient to establish that Mr. Hernandez was part of a drug distribution

conspiracy involving 100 kilograms or more of marijuana.

      As noted by the government, Mr. Long also “testified that [Mr. Hernandez]

delivered the fifteen pounds of marijuana for Tinajero and that Long paid

[Mr. Hernandez] $500 per pound for a total of $7,500 in cash at delivery,” and

“[t]his transaction was the subject of Count 2 of the Indictment, on which the jury

returned a verdict of not guilty.” Aplee. Br. at 9. Although the not guilty verdict

on Count 2 indicates the jury found that Mr. Long’s testimony regarding this

specific transaction was not credible, the not guilty verdict on Count 2 does not

necessarily undercut the remainder of Mr. Long’s testimony regarding the total

amounts of marijuana that Mr. Hernandez delivered to him. Indeed, in reviewing

for sufficiency of the evidence, “[c]redibility choices are resolved in favor of the

jury’s verdict.” Horn, 946 F.2d at 741. As a result, viewing the evidence in the

                                         -9-
light most favorable to the government, as we are required to do, we must assume

the jury found that the remainder of Mr. Long’s testimony was credible. 5

      This is an important point because Mr. Long’s testimony not only provided

direct evidence of Mr. Hernandez’s participation in a drug distribution conspiracy

involving in excess of 100 kilograms of marijuana, but his testimony also linked

Mr. Hernandez to the conspiracy as of December 2001 and thus the time of the

transaction involving the 1,986 pounds of marijuana. Consequently, based on

Mr. Long’s testimony, and given the additional evidence showing that

Mr. Tinajero used a telephone that had been subscribed in Mr. Hernandez’s name

to coordinate the transaction involving the 1,986 pounds of marijuana, the jury

could reasonably have found that: (1) Mr. Hernandez was knowingly involved

with Mr. Tinajero in a large-scale drug distribution conspiracy in December 2001;

and (2) he is therefore vicariously liable for the transaction involving the 1,986

pounds of marijuana even if he did not participate in that transaction.




5
        Because “all reasonable inferences and credibility choices must be made in
support of the jury’s verdict,” Evans, 970 F.2d at 671 (quotation omitted), we will
not assume, as the government does in its brief, that the jury’s not guilty verdict
on Count 2 means “it is likely that [the jury] discounted Long’s testimony in
calculating quantity also,” Aplee. Br. at 13. In fact, we note that Mr. Hernandez’s
counsel was able to elicit testimony from Mr. Long that provided a specific
reason for the jury not to believe his testimony regarding the fifteen-pound
transaction, namely that Mr. Long had failed to mention the transaction in his
initial discussions with the police as a cooperating witness. R., Vol. 3 at 264-68.

                                        -10-
      Accordingly, we conclude that the evidence concerning the marijuana

transactions in which Mr. Hernandez was directly involved (i.e., Mr. Long and the

114.5 kilograms), or, alternatively, the evidence concerning the transaction for

which he could be found vicariously liable (i.e., the December 2001 transaction

and the 1,986 pounds or 902.7 kilograms), provided a sufficient evidentiary basis

for the government to meet the 100-kilogram threshold.

      B. The District Court’s Sentencing Decision.

      As we have discussed in a number of recent published decisions, the

Supreme Court established a new appellate-level standard of review for federal

sentences in Booker:

             In United States v. Booker, . . . the Supreme Court held that
      the mandatory application of the Guidelines to judge-found facts
      (other than a prior conviction) violates the Sixth Amendment. 125 S.
      Ct. at 749-50. Rather than declare the Guidelines unconstitutional,
      however, the Court excised the provision of the federal sentencing
      statute that made the Guidelines mandatory, 18 U.S.C. § 3553(b)(1),
      effectively making the Guidelines advisory. The Court also excised
      18 U.S.C. § 3742(e), which set forth the standard of review on
      appeal, and held that the proper standard of review for sentences
      imposed post-Booker is “reasonableness.”

United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006) (per curiam).

      In light of Booker, “[w]e will set aside [Mr. Hernandez’s] sentence only if

it is procedurally or substantively unreasonable.” United States v. Geiner, 498

F.3d 1104, 1107 (10th Cir. 2007). We recently described these two concepts as

follows:


                                        -11-
      A procedurally reasonable sentence reflects the sentencing court’s
      calculation of the applicable advisory Guidelines range and its
      application of the § 3553(a) factors. See United States v. Atencio,
      476 F.3d 1099, 1102 (10th Cir. 2007). In addition, to impose a
      procedurally reasonable sentence, the sentencing court must “afford
      defendants their rights under the Federal Rules of Criminal
      Procedure.” Id. A sentence is substantively reasonable when it
      “reflects the gravity of the crime and the § 3553(a) factors as applied
      to the case.” Id.

            Moreover, although the Guidelines are now advisory, we
      accord a properly calculated Guidelines sentence a presumption of
      substantive reasonableness, see [Kristl, 437 F.3d at 1054-55], an
      approach the Supreme Court recently upheld as constitutional, Rita v.
      United States, __ U.S. __, 127 S. Ct. 2456 . . . (2007). . . .

             . . . With this in mind, we first determine whether the District
      Court correctly applied the Guidelines, reviewing the court’s findings
      of fact for clear error and its legal conclusions de novo.

Geiner, 498 F.3d at 1107-08.

      Mr. Hernandez challenges the procedural reasonableness of his sentence for

the conspiracy conviction. He argues insufficient evidence existed to support the

district court’s factual finding that he was responsible for the transaction that

occurred in December 2001 involving the 902.7 kilograms of marijuana and

therefore had a base offense level of thirty under the Guidelines. See U.S.

Sentencing Guidelines Manual § 2D1.1(a)(3) and (c)(5) (Nov. 1, 2006) (providing

a base offense level of thirty for drug conspiracies involving “[a]t least 700 KG

but less than 1,000 KG of Marihuana”). This is his sole challenge to his sentence,

and thus we do not need to address any other procedural issues or the question of

substantive reasonableness.

                                         -12-
      It is well established that, “[u]pon [his] conviction of conspiracy to possess

with intent to distribute [marijuana], [Mr. Hernandez] was accountable for that

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

foreseeable to [him].” United States v. Arias-Santos, 39 F.3d 1070, 1078 (10th

Cir. 1994). Moreover, Mr. Hernandez “may be sentenced on the basis of

[marijuana] possessed by another coconspirator, so long as the amount is within

the scope of the conspiracy and foreseeable by [Mr. Hernandez].” Id. This

principle is explicitly recognized in the Guidelines under the rubric of “Relevant

Conduct,” as the Guidelines provide that, “in the case of a jointly undertaken

criminal activity,” a defendant’s base offense level “shall be determined on the

basis of . . . all reasonably foreseeable acts and omissions of others in furtherance

of the jointly undertaken criminal activity.” U.S. Sentencing Guidelines Manual

§ 1B1.3(a)(1)(B) (Nov. 1, 2006).

      The district court’s “assessment of the drug quantity attributable to

[Mr. Hernandez] is a fact finding determined by a preponderance of the evidence

which we review for clear error.” Arias-Santos, 39 F.3d at 1078. Here, the court

concluded that the transaction involving the 902.7 kilograms of marijuana was

relevant conduct for purposes of sentencing Mr. Hernandez, finding that the

transaction was “reasonably foreseeable, . . . particularly since his own telephone

[was] being used in the transaction.” R., Vol. 5 at 8. As the court explained,

“[Mr. Hernandez] was convicted of the conspiracy and being a co-conspirator

                                         -13-
with Mr. Tinajero and I think this transaction would certainly fall within the

scope of that conspiracy and would be foreseeable.” Id. at 8-9. As set forth

above, the evidence at trial (i.e., the testimony of Brian Long regarding

Mr. Hernandez’s monthly marijuana deliveries from early 2000 to the latter part

of 2002) showed that, in December 2001, Mr. Hernandez was an active

participant along with Mr. Tinajero in a large-scale drug distribution conspiracy.

Thus, we have no difficulty concluding that the district court’s sentencing

decision was supported by a preponderance of the evidence and was not clearly

erroneous.

      The judgment of the district court and Mr. Hernandez’s convictions and

sentences are AFFIRMED.


                                                    Entered for the Court


                                                    Timothy M. Tymkovich
                                                    Circuit Judge




                                        -14-
