                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-3760
                                   ___________

United States of America,           *
                                    *
      Plaintiff - Appellee,         *
                                    * Appeal from the United States
      v.                            * District Court for the
                                    * Southern District of Iowa.
Jose Guadalupe Montano-Gudino,      *
                                    *
      Defendant - Appellant.        *
                               ___________

                             Submitted: June 12, 2002

                                 Filed: October 28, 2002
                                  ___________

Before WOLLMAN, RICHARD S. ARNOLD, and LOKEN, Circuit Judges.
                         ___________

LOKEN, Circuit Judge.

      Police seized twenty-two pounds of methamphetamine from a commercial
storage unit in Des Moines and then detained Jose Guadalupe Montano-Gudino when
he came to remove its contents. Consensual searches of his vehicle, person, and
residence yielded a “drug note” and other incriminating evidence. A jury convicted
him of conspiring to distribute methamphetamine and heroin in violation of 21 U.S.C.
§ 846, and the district court1 sentenced him to 135 months in prison. Montano-

      1
       The HONORABLE RONALD E. LONGSTAFF, Chief Judge of the United
States District Court for the Southern District of Iowa.
Gudino appeals, arguing the district court erred in denying his motion to suppress, the
evidence was insufficient, the court erred in admitting a threat against a government
witness by one of the alleged conspirators and in refusing to give a “buyer-seller” jury
instruction, and the court committed four sentencing errors. We affirm.

                           I. Fourth Amendment Issues.

       Acting on informant Jesse Hastie’s tip, police seized the methamphetamine in
the storage unit and placed the storage facility under surveillance. A few days later,
Montano-Gudino appeared with a copy of the rental agreement, the multi-digit access
code to the secure portion of the facility, and a key to one of two padlocks on the unit
in question. The facility manager alerted police and furnished Montano-Gudino with
bolt cutters to remove the second padlock. After Montano-Gudino had loaded the
entire contents of the storage unit into his truck, the police arrived and detained him
for questioning. It was snowing heavily, so three officers accompanied Montano-
Gudino to a small room inside the storage facility offices. After being advised of his
Miranda rights in Spanish and in English, he signed written consents to search his
vehicle and his residence, and orally consented to a search of his person by emptying
his pockets for the officers. On appeal, Montano-Gudino argues that the evidence
from these searches should have been suppressed as the fruits of an illegal detention
or, alternatively, of unlawful coercion. Like the district court, we disagree.

       Montano-Gudino first argues that his initial detention outside the storage unit
violated the Fourth Amendment because it was based solely on the officers’ “mere
hunch” he was engaged in criminal activity. This contention is without merit.
Because the police had seized a large quantity of methamphetamine from the locked
storage unit a few days earlier, they may well have had probable cause to arrest the
person who removed the three large detergent boxes that formerly contained the
contraband. At a minimum, the officers had reasonable suspicion to detain that
person while they attempted to determine whether he emptied the storage unit at the

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direction of the drug traffickers, or with knowledge of the unit’s illegal contents. See
United States v. Long, 674 F.2d 848, 853 (11th Cir. 1982); United States v.
D’Antignac, 628 F.2d 428, 434-35 (5th Cir. 1980). Moreover, the officers had
reviewed the storage unit rental agreement and knew Montano-Gudino was not listed
as the lessee, which gave them an additional reason to question him about his actions
in attempting to remove its contents.

       Montano-Gudino next argues that his continued detention while the officers
escorted him to a room in the storage facility offices and questioned him exceeded the
scope and duration of a permissible investigatory stop. See generally Florida v.
Royer, 460 U.S. 491, 500 (1983). Again, we disagree. The police were clearly
justified in asking Montano-Gudino to explain his suspicious conduct in accessing
and emptying the storage unit. See United States v. Willis, 967 F.2d 1220, 1224 (8th
Cir. 1992). It was reasonable to take him inside for this purpose. Asking for consent
to search his vehicle and person was “a diligent and reasonable manner” of
conducting the investigation. United States v. Sharpe, 470 U.S. 675, 687 (1985).
And the fruits of those initial searches fully justified any additional detention needed
to complete a consensual search of his residence.

       Finally, Montano-Gudino argues that the consent to search his person was
involuntary because he was not told he did not have to consent, he was not free to
leave, and he was in a small room with three armed police officers. The record
reflects that Montano-Gudino voluntarily emptied his pockets in response to the
officers’ request. He was being lawfully detained, and there is no evidence other than
the detention itself that his consent was not freely and voluntarily given. No
“presumption of invalidity attaches if a citizen consented without explicit notification
that he or she was free to refuse to cooperate.” United States v. Drayton, 122 S. Ct.
2105, 2113 (2002). In these circumstances, the district court’s finding of voluntary
consent was not clearly erroneous. See United States v. Hawthorne, 982 F.2d 1186,
1191 (1992) (standard of review).

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                         II. Sufficiency of the Evidence.

      Montano-Gudino argues the evidence was insufficient to find him guilty
beyond a reasonable doubt of knowingly conspiring to distribute either heroin or
methamphetamine. When reviewing the sufficiency of the evidence, we “examine the
evidence in the light most favorable to the government, giving it the benefit of all
reasonable inferences.” United States v. Ivey, 915 F.2d 380, 383 (8th Cir. 1990).

       As to the heroin charge, the drug note found in Montano-Gudino’s pocket
stated, “5.4 OZ., $8,800 owed, $1,600 per ounce, Greg and Carol Page.” At trial,
Gregory Page testified Montano-Gudino sold Page five ounces of heroin and
Montano-Gudino’s brother, Sandro Montano, sold Page two ounces. Detective
Kenneth O’Brien, the officer in charge of the investigation, testified that seven
ounces of heroin is equivalent to eight hundred dosage units, a distribution quantity.
The jury was entitled to believe this testimony, which was sufficient to convict
Montano-Gudino of conspiring to distribute heroin.

       As to the methamphetamine charge, the principal evidence was that Montano-
Gudino emptied out a storage unit that had contained twenty-two pounds of
methamphetamine. In this regard, Jesse Hastie testified that he rented the commercial
storage unit to store methamphetamine for Miguel Hernandez, paying the rental fee
and locking the storage unit with money and two padlocks supplied by Hernandez.
After Hastie gave his copy of the rental agreement and the key to one padlock to
Hernandez, Hastie and Hernandez packed the methamphetamine in detergent boxes
and stored them in the storage unit. Less than a week later, Montano-Gudino
appeared at the storage facility, knowing the access code to the secure area and
carrying a copy of the rental agreement and a key to one of the padlocks. In addition
to this evidence, Gregory Page testified that Montano-Gudino and Sandro Montano
supplied methamphetamine for group recreational use every weekend or every other
weekend for almost a year, and that Montano-Gudino gave Page one-sixteenth of an

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ounce of methamphetamine on one occasion. This evidence, viewed in the light most
favorable to the government, was ample to convict Montano-Gudino of conspiring
to distribute methamphetamine.

                            III. An Evidentiary Issue.

       At trial, the government offered a tape recording of Miguel Hernandez’s
telephone threat to harm the children of witness Jesse Hastie if he cooperated with
the government, a call made just four days after Montano-Gudino’s arrest. The
district court admitted the tape as a coconspirator’s statement during the course of and
in furtherance of the alleged conspiracies. See FED. R. EVID. 801(d)(2)(E). We
review such evidentiary rulings for clear abuse of discretion. United States v. Beal,
279 F.3d 567, 571 (8th Cir.), cert. denied sub nom. United States v. Johnson, 122 S.
Ct. 2642 (2002). The threat was relevant to show the conspirators’ consciousness of
guilt. See United States v. Garrison, 168 F.3d 1089, 1093 (8th Cir. 1999). The
timing of the threat was some evidence of Montano-Gudino’s participation. See
Bourjaily v. United States, 483 U.S. 171, 180 (1987). While Hernandez’s chilling
threat may have been prejudicial, Rule 403 of the Federal Rules of Evidence is
concerned with “unfair prejudice,” that is, an “undue tendency to suggest decision on
an improper basis.” FED. R. EVID. 403 advisory committee’s note. The district court
did not abuse its substantial discretion by admitting this evidence.

                         IV. The Jury Instruction Issue.

        Citing the testimony of Jesse Hastie and Gregory Page and relying on United
States v. Prieskorn, 658 F.2d 631, 636 (8th Cir. 1981), Montano-Gudino argues that
the district court abused its discretion when it refused to give a requested jury
instruction “that sale or gift of a small amount of a controlled substance between two
individuals is not a conspiracy.” But Prieskorn is distinguishable in many respects.
First, in Prieskorn the defense was that defendant was a one-time buyer of drugs.

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Montano-Gudino cites no case approving the instruction where the government’s
evidence, if believed, establishes that the defendant conspired with third parties to sell
drugs to a single buyer. Second, Prieskorn applies when there is evidence that only
a single, isolated sale of drugs occurred. See United States v. Hester, 140 F.3d 753,
757 (8th Cir. 1998). Here, there was evidence of multiple heroin and
methamphetamine transactions. Third, Prieskorn does not apply to a defendant who
received a large, distribution-quantity of drugs. See United States v. Wiggins, 104
F.3d 174, 177 (8th Cir. 1997). Here, Montano-Gudino emptied a storage unit that had
contained twenty-two pounds of methamphetamine. Finally, the district court gave
the jurors a “mere presence” instruction, which adequately explained any theory of
the defense that was supported by the evidence. Thus, the court did not abuse its
discretion by refusing to give the requested instruction.

                                V. Sentencing Issues.

      At sentencing, based upon the trial evidence, the district court found that
Montano-Gudino’s base offense level was 36, using the quantity of methamphetamine
seized from the commercial storage unit as well as the heroin sold to Gregory Page.
Over the government’s objection, the court allowed Montano-Gudino a three-level
downward adjustment based upon his more than minimal but less than minor role in
the offense. See U.S.S.G. § 3B1.2. Finally, the court denied his requests for
acceptance-of-responsibility and “safety valve” adjustments.

      1. On appeal, Montano-Gudino first argues that the court clearly erred in
including the methamphetamine seized from the commercial storage unit in its drug
quantity calculation because that quantity was neither known to nor reasonably
foreseeable to Montano-Gudino. But known or reasonably foreseeable is the standard
for determining whether the sentencing court “may consider amounts from drug
transactions in which the defendant was not directly involved.” United States v.
Brown, 148 F.3d 1003, 1008 (8th Cir. 1998) (emphasis added).

                                           -6-
       Here, the trial evidence established that Montano-Gudino was sent to empty a
storage unit where the conspirators had hidden a large quantity of methamphetamine.
He brought with him a copy of the rental agreement and a key to the padlocked unit.
There was testimony that Montano-Gudino had significant relationships with other
conspirators, including Miguel Hernandez, who had rented the storage unit. Thus,
it was reasonable to infer that he knew he would be transporting a controlled
substance. In these circumstances, he “is accountable for the controlled substance [he
intended to transport] regardless of his knowledge or lack of knowledge of the actual
type or amount of that controlled substance.” U.S.S.G. § 1B1.3, comment. (n. 2,
illustration (a)(1)). The district court’s drug quantity finding was not clearly
erroneous. See United States v. Tauil-Hernandez, 88 F.3d 576, 579 (8th Cir. 1996)
(standard of review).

       2. Montano-Gudino next argues that he is entitled to a four-level rather than
a three-level downward adjustment for his role in the offense because he was only a
“minimal participant” within the meaning of U.S.S.G. § 3B1.2(a). This issue was not
preserved for appeal. After the court announced its drug quantity and role-in-the-
offense findings, there was the following exchange:

             THE COURT: And you [defense counsel] object to my drug
      quantity finding but concur, I assume, in my role-reduction finding; is
      that right?

             MR. WRIGHT: That’s correct, Judge.

      3. Montano-Gudino next argues that the district court clearly erred in denying
him a two-level acceptance-of-responsibility adjustment. See United States v.
Carrasco, 271 F.3d 765, 768 (8th Cir. 2001) (standard of review). When a defendant
contests essential elements of the crimes charged at trial, as did Montano-Gudino, it
is only the rare case where his pretrial statements and conduct nonetheless
demonstrate acceptance of responsibility. See U.S.S.G. § 3E1.1 comment. (n. 2). In

                                         -7-
this case, Montano-Gudino contested the charges both before, during, and after the
trial. He was not entitled to an acceptance-of-responsibility adjustment.

       4. Finally, Montano-Gudino argues that the district court erred in denying him
“safety valve” relief. The Guidelines safety-valve provision implements 18 U.S.C.
§ 3553(f)(5) by providing that a defendant may be sentenced “in accordance with the
applicable guidelines without regard to any statutory minimum sentence” if the court
finds he has met five statutory criteria. See U.S.S.G. § 5C1.2(a).

       We have difficulty perceiving the relevance of this issue because Montano-
Gudino’s mandatory minimum sentence on the methamphetamine count was ten
years, the mandatory minimum on the heroin count was five years, and the bottom of
his guidelines sentencing range, which we have now affirmed, was 135 months, or
more than eleven years. But in any event, Montano-Gudino relies upon a two-
paragraph letter he provided the government just before sentencing. Like the district
court, we conclude this letter did not come close to meeting his burden of showing
that he “truthfully provided to the Government all information and evidence the
defendant has concerning the offense or offenses that were part of the same course
of conduct or of a common scheme or plan.” U.S.S.G. § 5C1.2(a)(5); see United
States v. Rios, 171 F.3d 565, 567 (8th Cir. 1999) (defendant has burden of proof).
Thus, he was not eligible for safety-valve relief.

      The judgment of the district court is affirmed.

      A true copy.

             Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.



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