UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff–Appellee,

v. JAVIER HERNANDEZ, Defendant–Appellant. No. 09-3263 (D.C. No. 2:07-CR-20143-CM-4) (D. Kan.)

ORDER AND JUDGMENT *

Before BRISCOE , LUCERO , and HOLMES , Circuit Judges.
Javier Hernandez appeals his conviction an d sentence after a jury found him guilty of conspiring to distribute methamphetamine. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I Hernandez was indicted on a single count of conspiracy to distribute and possess with intent to distribute fifty grams or more of methamphetamine, 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral es toppel. This court generally disfavors the citation of orders and judgments; nevertheless , an order and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 9, 2010
Elisabeth A. Shumaker Clerk of Court-2- U.S.C. §§ 846 and 841(a)(1). He was tried with two codefendants in January 2009. At the close of the government’s case, Hernan dez unsuccessfully moved for a judgment of acquittal based on insufficiency of the evidence. The jury returned a verdict of guilty. Hernandez then moved for a ne w trial, again arguing that th e evidence was insufficient, but the motion was denied. Hernandez al so objected to a recommended two-level sentencing enhancement includ ed in the Presentence Inve stigation Report (“PSR”) for possession of a firearm. The court overruled hi s objection, and imposed a sentence at the bottom of Hernandez’s Guidelines ra nge: 151 months’ imprisonment.
II On appeal, Hernandez renews his contenti on that the evidence was insufficient to support the verdict. We review the denial of a motion for a new trial for abuse of discretion. United States v. Zabriskie , 415 F.3d 1139, 1144 (10t h Cir. 2005). We review the denial of a motion for acquittal de novo. United States v. Burkley , 513 F.3d 1183, 1190 (10th Cir. 2008). In bo th instances, we must dete rmine whether a rational jury could have found Hernandez guilty when viewing the evidence and all reasonable inferences to be drawn there from in the light most favorab le to the government. See id. ; Zabriskie , 415 F.3d at 1144. “To prove conspiracy, the government must show [1] that tw o or more persons agreed to violate the law, [2] that the defendant knew at l east the essential objectives of the conspiracy, [3] that the de fendant knowingly and voluntarily became a part of it, and [4] that the alleged coconspirators were interdependent.” Un ited States v. Evans , 970-3- F.2d 663, 667 (10th Ci r. 1992) (quotations omitted). Evidence adduced at trial was sufficient to prove conspiracy. The gove rnment presented testimony showing that Hernandez purchased between two and seven ounces of methamphetamine from a codefendant on multiple occasions in the summer of 2007. Hernandez then sold these drugs to other dealers. Further, the gove rnment showed that Hernandez delivered a motorcycle to a codefendant as partial paym ent for another drug dealer’s debt to that codefendant. An ordinary buyer-seller re lationship, without more, is generally insufficient to establish a conspiracy to distribute. See United States v. McIntyre , 836 F.2d 467, 471 (10th Cir. 1987). But the purpose of this rule “is to separate consumers, who do not plan to redistribute drugs for profit, from street-lev el, mid-level, and othe r distributors, who do intend to redistribute drugs for profit, thereby fu rthering the objective of the conspiracy.” United States v. Ivy , 83 F.3d 1266, 1285-86 (10th Cir. 19 96). Hernandez’s role as a midlevel dealer—that is, an individual who pu rchased drugs from a high-level dealer and distributed them to other dealers—plainly qu alifies as conspiratorial under our circuit precedent. See United States v. Wright , 506 F.3d 1293, 1299 (10t h Cir. 2007) (“The jury could easily infer from all the ev idence that [the seller] was aware that [the buyer] was buying the drug in orde r to sell it for a profit. This buye r-seller relationship is patently an interdependent one.”). Hernandez’s delivery of a motorcycle in payment of another dealer’s drug debt only cemen ts this conclusion. See United States v. Hamilton , 587 F.3d 1199, 1208-11 (10th Cir. 2009) (collection of drug debt may be sufficient to show-4- membership in conspiracy). Hernandez attempts to distinguish Wright and Hamilton by noting that in both cases the defendant was more thor oughly involved in the conspiracy than he was. But we have held that “[e]ven a single overt act by th e defendant can be sufficient to connect him to the conspiracy if that act l eads to a reasonable inference of intent to participate in an unlawful agreement or criminal ente rprise.” United States v. Pack , 773 F.2d 261, 266 (10th Cir. 1985). Hernandez also relies on Evans , 970 F.2d 663, a case in which we reversed the conspiracy conviction of a defe ndant who made a single purchase of drugs and lent scales to codefenda nts on a single occasion. Id. at 673. But Evans is inapposite for two reasons. First, there was no ev idence that the de fendant in Evans resold drugs, as did Hernandez. See id. ; see also Wright , 506 F.3d at 1299. Second, the conviction in
Evans was reversed because the ev idence failed to sh ow that the defendant engaged in the wide-ranging conspiracy that was charged. 9 70 F.2d at 673-74. The indictment in this case was far more modest, and the eviden ce was sufficient to show Hernandez’s membership in the smaller conspiracy with which he was charged. Evidence that Hernandez was a mid-level drug dealer who also assisted in drugdebt collection was sufficient to prove he conspired to distribut e methamphetamine as alleged in the indictment.
III Hernandez also challenges the distri ct court’s imposition of a two-level enhancement for possession of a firearm under U. S.S.G. § 2D1.1(b)(1). In considering a-5- district court’s application of the Guidelines, we review its legal interpretations de novo and its factual findings for clear error. See United States v. Parker , 553 F.3d 1309, 1321 (10th Cir. 2009). Under U.S.S.G. § 2D1.1(b)(1), two levels ar e added to certain drug crimes “[i]f a dangerous weapon (including a firearm) was possessed.” Id. The Guidelines commentary states that this “adjustment shoul d be applied if the weapon was present, unless it is clearly improbable that the w eapon was connected with the offense.” U.S.S.G. § 2D1.1(b)(1), app. n.3. In United States v. Zavalza-Rodriguez , 379 F.3d 1182 (10th Cir. 2004), we set out the burden-shifting fra mework applicable to this provision: [T]he government has the initial bur den of proving posse ssion of a weapon for purposes of § 2D1.1(b)(1) by pr eponderance of the evidence. This burden is met by establishing that a te mporal and spatia l relation existed between the weapon, the drug trafficki ng activity, and the defendant. Once the government satisfies this initial burden, the defendant may overcome it only if he establishes that it is clea rly improbable that the weapon was connected with the offense. Id. at 1184-85 (quotations and citation omitted). The district court credited testimony that Hernandez carried a nine millimeter handgun during drug transactions. This te stimony satisfies the government’s initial burden. Hernandez does not establish that the district court’s finding was clearly erroneous, nor does he attempt to show that it was “clearly improbable that the weapon was connected with the offense.” Id. Hernandez does argue that th e government did not prove that the gun he allegedly possessed traveled in interstate commerce. Bu t the government was not required to make-6- such a showing. Hernandez confuses U. S.S.G. § 2K2.1, which enhances certain sentences if a defendant unlawfully possesses or distributes a firearm, with the relevant § 2D1.1(b)(1), which applies if the defenda nt possesses a firearm while committing a drug offense. In United States v. Campbell , 372 F.3d 1179 (10th Cir. 2004), we reversed a sentence that included a §2 K2.1 enhancement when the government conceded it could not prove that a firearm had tr aveled in interstate commerce and thus could not prove it was unlawfully possessed. Campbell , 372 F.3d at 1182. Alth ough Hernandez attempts to rely on that case, it is irrelevant to the § 2D1. 1 enhancement.
IV AFFIRMED

.

Entered for the Court

Carlos F. Lucero Circuit Judge