                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                    December 19, 2014
                                  TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                       Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 14-5038
 v.                                           (D.C. No. 4:13-CR-00155-JED-1)
                                                      (N. Dist. Okla.)
 JESUS UZZIEL RODRIGUEZ,

          Defendant - Appellant.




                          ORDER AND JUDGMENT *

Before GORSUCH, SEYMOUR, and BACHARACH, Circuit Judges.



      Jesus Uzziel Rodriguez was convicted by a jury of conspiracy and

possession with intent to distribute 500 grams or more of methamphetamine in

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

we affirm.

      Special Agent John Morrison of the Oklahoma Bureau of Narcotics (OBN)

used a confidential informant to set up a methamphetamine buy-bust deal at a

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. It may be cited
for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
Tulsa FedEx location that led to the arrest and indictment of three individuals:

Mr. Rodriguez, Vicente Chipres Valencia, and Francisco Reyes-Sanchez.

Mr. Valencia and Mr. Reyes-Sanchez pled guilty to the possession charge in

exchange for dismissal of the conspiracy charge. At Mr. Rodriguez’s trial, both

men testified that all three conspired to obtain at least two pounds of

methamphetamine to sell, that they obtained the drugs from Mr. Rodriguez, and

that Mr. Valencia and Mr. Rodriguez drove from California to Pennsylvania to

Oklahoma to deliver the drugs to Mr. Reyes-Sanchez. The jury convicted Mr.

Rodriguez, and he received a 240-month sentence.

      On appeal, Mr. Rodriguez argues the evidence presented at trial was

insufficient to sustain his convictions. “We review sufficiency-of-the-evidence

challenges de novo, considering both direct and circumstantial evidence, and all

reasonable inferences therefrom, in the light most favorable to the government.”

United States v. Acosta-Gallardo, 656 F.3d 1109, 1123 (10th Cir. 2011) (internal

quotation marks and alteration omitted). In undertaking this analysis, “[w]e may

not disturb the jury’s credibility determinations, nor weigh the evidence.” Id.; see

also United States v. Lauder, 409 F.3d 1254, 1259 (10th Cir. 2005). “The

evidence is sufficient under these tests if a reasonable jury could have found the

defendant guilty beyond a reasonable doubt.” Acosta-Gallardo, 656 F.3d at 1123.

      Mr. Rodriguez contends the evidence was insufficient to show that he

knowingly and voluntarily agreed with anyone to possess and distribute

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methamphetamine, or that he knew Mr. Valencia and Mr. Reyes-Sanchez planned

to distribute methamphetamine. He specifically contends the government failed

to present sufficient evidence that he actually or constructively possessed the

methamphetamine or that he had the specific intent to distribute the drugs.

      To convict Mr. Rodriguez of conspiracy, the government was required to

“show that (1) two or more persons agreed to violate the law; (2) the defendant

knew the essential objectives of the conspiracy; (3) the defendant knowingly and

voluntarily participated in the conspiracy; and (4) the alleged coconspirators were

interdependent.” Id. In order to convict Mr. Rodriguez for possession with intent

to distribute, the government had to prove beyond a reasonable doubt that he

“knowingly possessed the illegal drugs” and that he “possessed the drugs with the

specific intent to distribute them.” Lauder, 409 F.3d at 1259 (citing 21 U.S.C. §

841(a)(1)). “Possession may be either actual or constructive. Constructive

possession exists where the defendant has the power to exercise control or

dominion over the contraband.” Id. (quotations, alterations, and citations

omitted). In cases such as this, “where the drugs may be attributed to more than

one person, we require some nexus, link, or other connection between the

defendant and the contraband.” Id. In other words, “in order to sustain a

conviction based on constructive possession in joint occupancy cases, the

government must show evidence supporting at least a plausible inference that the

defendant had knowledge of and access to the weapon or contraband.” United

                                         -3-
States v. Norman, 388 F.3d 1337, 1341 (10th Cir. 2004) (internal quotation marks

omitted).

      Ample evidence in the record supports Mr. Rodriguez’s convictions for

conspiracy and possession with intent to distribute. At trial, Mr. Valencia

affirmed statements from his plea agreement that he and Mr. Rodriguez agreed to

obtain and possess a large quantity of methamphetamine with the intent to

distribute it, and that they delivered the drugs to Mr. Reyes-Sanchez at the FedEx

location in Tulsa. Specifically, Mr. Valencia said that Mr. Reyes-Sanchez called

and asked if he could obtain meth to bring to Tulsa, and that he then contacted

Mr. Rodriguez, who agreed to supply the drugs. The drugs were going to cost

$10,000 a pound with the understanding they would be resold for $13,000 a

pound to Mr. Reyes-Sanchez. Mr. Valencia rented the car with his credit card and

he and Mr. Rodriguez drove the drugs from California to the FedEx location in

Tulsa to deliver them to Mr. Reyes-Sanchez. 1 Mr. Rodriguez bought the food and

gas and agreed to pay Mr. Valencia $2,500 for driving.

      Mr. Reyes-Sanchez confirmed Mr. Valencia’s testimony and admitted that

he conspired with Mr. Rodriguez and Mr. Valencia. He testified he set up the

deal with Mr. Valencia for delivery of two pounds of methamphetamine at the

FedEx location, and that he was going to sell the drugs for $15,000 a pound. He


      1
       Mr. Valencia testified that they drove to Pennsylvania first because Mr.
Rodriguez wanted to go there to see a family friend.

                                        -4-
further testified that when Mr. Rodriguez and Mr. Valencia arrived at the FedEx

parking lot, he came out of the building and saw them exit a white car. After Mr.

Valencia introduced Mr. Reyes-Sanchez to Mr. Rodriguez, Mr. Reyes-Sanchez

told Mr. Valencia to give him the drugs so he could put them in his truck. At this

point, Mr. Reyes-Sanchez testified, Mr. Valencia looked at Mr. Rodriguez and

asked, “What do you think about that?” Rec., vol. III at 199. Mr. Rodriguez

replied, “Whatever you think about it,” id., and then gestured and said that it was

okay. Mr. Valencia opened the trunk, pulled out a white bag, and gave it to Mr.

Reyes-Sanchez to put in his truck. Mr. Reyes-Sanchez went back to work until

the informant arrived. When he returned to the parking lot, Mr. Valencia

approached him and said Mr. Rodriguez had directed Mr. Valencia to go along

with Mr. Reyes-Sanchez and the buyer while they did the deal because Mr.

Rodriguez was worried that they would be robbed. This testimony supports a

plausible inference that Mr. Rodriguez had the power to exercise control over the

drugs, and that he specifically intended that they be sold as agreed.

      The confidential informant testified that when he arrived at the FedEx

parking lot with an OBN undercover agent, Mr. Reyes-Sanchez went to his truck,

pulled out the white bag, handed it to Mr. Valencia, and then both men got in the

informant’s truck. As the informant proceeded to a different location, OBN

agents directed him to stop at a gas station, where agents arrested Mr. Valencia

and Mr. Reyes-Sanchez. The agents found over 1500 grams of methamphetamine

                                         -5-
in the white bag inside the informant’s truck. Agents then returned to arrest Mr.

Rodriguez at the FedEx parking lot.

       The testimony of Mr. Valencia and Mr. Reyes-Sanchez, as described above,

provides sufficient evidence that Mr. Rodriguez conspired to distribute

methamphetamine and that he constructively possessed the drugs with the specific

intent to distribute them. 2

       Mr. Rodriguez also argues that the district court failed to follow the

statutory procedures set forth in the Court Interpreters Act (CIA), 28 U.S.C. §

1827, when the court failed to determine whether a certified interpreter was

reasonably available before appointing allegedly uncertified interpreters for the

trial, and when it failed to obtain a waiver from him on the record. Because Mr.

Rodriguez did not make these objections in district court, we review for plain

error. “Under plain error review, a defendant must show (1) an error, (2) that is

plain, which means clear or obvious under current law, and (3) that affects

substantial rights.” Acosta-Gallardo, 656 F.3d at 1122 (internal quotation marks

omitted). If Mr. Rodriguez satisfies these three prongs, “we may exercise

discretion to correct the error if [4] it seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. (alteration in original) (internal

quotation marks omitted).

       2
        At trial, phone records, surveillance videos, and photos also connected
Mr. Valencia and Mr. Rodriguez and documented Mr. Rodriguez’s involvement in
the crime.

                                           -6-
      We need not address the merits of Mr. Rodriguez’s argument that the

district court plainly violated the CIA because he does not begin to establish that

his substantial rights were affected. While Mr. Rodriguez does not speak English,

it is undisputed that the district court provided him with an interpreter throughout

the proceedings, including two interpreters during trial. Mr. Rodriguez has not

pointed to even one instance in the record showing that he did not understand the

proceedings at trial, or that the use of the interpreters the court appointed affected

the outcome of the proceedings. Cf. United States v. Hasan, 526 F.3d 653, 667-

72 (10th Cir. 2008) (attaching transcripts showing confusion of defendant when

questioned). Thus, even assuming the district court plainly erred by using

uncertified interpreters, Mr. Rodriguez has not shown that his substantial rights

were affected or that the fairness, integrity, or public reputation of the judicial

proceedings were affected.

      We AFFIRM.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




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