UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

v. 

MEDARDO VALDEZ VALENZUELA, 

 Defendant-Appellant. 

No. 11-4127 

(D.C. No. 1:09-CR-00082-DB-1) 

(D. Utah)

 

 

ORDER AND JUDGMENT*

 

Before BRISCOE, Chief Judge, PORFILIO, Senior Circuit Judge, and MURPHY, 

Circuit Judge. 

 

 

 A jury convicted appellant Medardo Valdez Valenzuela on two counts, 

conspiracy to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) 

and 846, and possession of a controlled substance with intent to distribute in 

violation of 21 U.S.C. § 841(a)(1). On the first count, the jury found by special 

verdict that he had conspired to distribute between 350 and 500 grams of 

 

*

 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 11, 2012

Elisabeth A. Shumaker 

Clerk of Court
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methamphetamine. At sentencing, in addition to the quantity of drugs seized at 

Valenzuela’s house, the district court attributed to Valenzuela another 900 grams of 

methamphetamine found in a car, which increased his base offense level under the 

United States Sentencing Guidelines from 30 (under the jury’s findings) to 36, and 

increased the base sentencing range from 97-121 months to 188-235 months.1

 The 

district court assessed a two-level increase against Valenzuela for being an organizer, 

leader, manager, or supervisor of criminal activity, resulting in a sentencing range of 

235-293 months, but varied downward from that range and sentenced Valenzuela to 

180 months’ imprisonment. Valenzuela appeals, contesting the sufficiency of the 

evidence against him and the procedural and substantive reasonableness of his 

sentence. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we 

affirm Valenzuela’s convictions and sentence. 

I. BACKGROUND 

 In August 2009, Valenzuela became the subject of a wiretap investigation 

involving a phone number linked by a global positioning system (GPS) to a cell 

phone in use at Valenzuela’s residence in Clinton, Utah, a rental house he shared 

with Francisco Zetina-Arriaga (Zetina). Federal and local law enforcement agencies 

initiated an investigation, which included surveillance of the house. On one occasion 

in late September 2009, an officer observed two men in a Volkswagen Passat arrive 

 

1

 All references to the Guidelines are to the 2010 edition under which 

Valenzuela was sentenced. 
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at Valenzuela’s house and park behind it, out of the officer’s sight. The officer then 

observed Valenzuela arrive and also park in the back. About two hours after the men 

arrived in the Passat, they drove off in it. Another officer followed them to a hotel, 

where they spent a short time in a room and emerged with a suitcase, pillows, and a 

blanket. After the officers observed the driver of the Passat commit a traffic 

violation, the officers stopped the Passat. The men consented to a search, which 

uncovered two plastic bags in the trunk containing a total of 900 grams of 

methamphetamine. The two men, whom officers later identified as Mario Gutierrez 

and Juan Samano, were arrested. 

 On the same day, Zetina left the house in a different car. He was followed and 

arrested. Later that night, a search warrant was executed at Valenzuela’s house.2

 

Among other things, officers found three separate bags containing a total of 132 

grams of a mixture of methamphetamine and dimethyl sulfone (a dietary supplement 

used as a cutting agent). These bags were found in the southeast bedroom of the 

house, referred to at trial as bedroom number one. In a bathroom, officers found 33.3 

grams of dimethyl sulfone wrapped in tin foil and 399.5 grams of dimethyl sulfone in 

a plastic grocery bag. In another bedroom, officers found .84 grams of pure 

methamphetamine and 27.2 grams of a mixture of methamphetamine and dimethyl 

sulfone. In a third bedroom, officers found a handgun. 

 

2

 Valenzuela was not at the house when the search was conducted but was 

arrested sometime later. 
- 4 - 

 At trial, the parties stipulated that the cell-phone number subject to the wiretap 

was not assigned to Valenzuela. However, Valenzuela’s landlord provided testimony 

linking Valenzuela to the cell-phone number: Valenzuela had given him the number 

that was the subject of the wiretap. Valenzuela’s landlord programmed the number 

into his phone under “Medardo,” he had called Valenzuela at that number many times 

inquiring about the rent, he received calls from Valenzuela from that number (as 

shown by his caller ID), and he recognized Valenzuela’s voice on the voicemail 

greeting for that number. The landlord further testified that he provided Valenzuela’s 

telephone number to a federal investigator, who confirmed that it was the same 

number that was the subject of the wiretap. 

Regarding bedroom number one, the landlord testified that Valenzuela had 

said it was his. In addition, in August 2009, Valenzuela informed the landlord that he 

and Zetina would be breaking the lease and moving out at the end of the month 

because they could not pay the rent. When the landlord attempted to show the house 

to prospective tenants, there was a lock on the door to bedroom number one that had 

not been there before, and Valenzuela said he would not let the landlord in because 

there was a stain on the carpet and the room was a mess. 

 The government introduced into evidence eighteen recorded wiretap conversations 

in Spanish, each of which was accompanied by a Spanish transcript and an English 

translation. Most of the recordings were played to the jury. An English translator 

testified as to the contents of the conversations. The translator testified that one of 
- 5 - 

the voices in every conversation belonged to the same person. In five of those 

conversations, a woman named Margarita called that person by Valenzuela’s first 

name, “Medardo.” In the other conversations, Valenzuela was sometimes addressed 

as “Lalo” but never as Medardo. Although there was little or no direct reference to 

drugs, sales, or money, the government presented expert testimony from a DEA agent 

that drug traffickers often use code words for drugs and money, and that one pound 

of methamphetamine (453.59 grams) sold for between $16,000 and $20,000. In this 

case, the government theorized, Valenzuela and his alleged co-conspirators used code 

words such as “paint” for methamphetamine, “thinner” for the cutting agent, and 

“bucket” of paint to refer to a one-pound quantity of methamphetamine. Because 

Valenzuela ran a legitimate painting business, the theory continued, paint-related 

code words would make it difficult for authorities to figure out that in fact he and his 

co-conspirators were talking about drugs. Other code words allegedly used included 

“paper” and “paperwork” for money, and “water,” “the material,” “food,” and “car” 

for methamphetamine. 

II. DISCUSSION 

A. Sufficiency of the evidence 

 Valenzuela contests the sufficiency of the evidence on both counts of 

conviction, but he did not move for acquittal in the district court. In this 

circumstance, our review technically is for plain error. See United States v. 

Kaufman, 546 F.3d 1242, 1263 (10th Cir. 2008). “Plain error occurs when there is 
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(1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously 

affects the fairness, integrity, or public reputation of judicial proceedings.” United 

States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (quotation omitted). 

However, as a practical matter, the standard actually applied is the same as if there 

had been a motion for acquittal—de novo—because a conviction in the absence of 

sufficient evidence is plainly an error affecting substantial rights provided that “the 

error seriously affects the fairness, integrity, or public reputation of judicial 

proceedings.” Kaufman, 546 F.3d at 1263; see also United States v. Cox, 929 F.2d 

1511, 1514 (10th Cir. 1991) (noting that plain error is sometimes invoked where a 

judgment of acquittal is not renewed at the close of all evidence, “yet the standard 

actually applied is essentially the same as if there had been a timely motion for 

acquittal” (quotation omitted)). 

 “Evidence is sufficient to support a conviction if a reasonable jury could find 

the defendant guilty beyond a reasonable doubt, given the direct and circumstantial 

evidence, along with reasonable inferences therefrom, taken in a light most favorable 

to the government.” United States v. Nelson, 383 F.3d 1227, 1229 (10th Cir. 2004) 

(quotation omitted). “A ‘reasonable doubt’ is a doubt based upon reason and 

common sense after careful and impartial consideration of all the evidence in the 

case.” United States v. Clifton, 406 F.3d 1173, 1178 (10th Cir. 2005) (quotation 

omitted). Evidence is evaluated “by considering the collective inferences to be 

drawn from the evidence as a whole.” Nelson, 383 F.3d at 1229 (quotation omitted). 
- 7 - 

“In conducting our inquiry, we do not weigh conflicting evidence nor consider the 

credibility of witnesses. Instead, we must simply determine whether the evidence, if 

believed, would establish each element of the crime.” United States v. 

Delgado-Uribe, 363 F.3d 1077, 1081 (10th Cir. 2004) (brackets, citation, and 

quotation omitted). 

As to the conspiracy charge, the government was required to “prove beyond a 

reasonable doubt: (1) an agreement with another person to violate the law, 

(2) knowledge of the essential objectives of the conspiracy, (3) knowing and 

voluntary involvement, and (4) interdependence among the alleged conspirators.” Id.

at 1083. Valenzuela argues that there was no verification that the voice on the 

wiretap recordings was his, and that there was no discussion of drug dealings, only 

references to “buckets of paint” and “paper.” Further, he claims there was no 

testimony that he ever discussed buying or selling drugs or possessed any drugs or 

cash from selling large quantities of drugs. Finally, he claims that without proof that 

his was the voice on the wiretap recordings or that he ever made a drug sale or buy, 

there was insufficient evidence of interdependence. 

 Having reviewed the record, we conclude that there was sufficient evidence to 

support the jury’s verdict on the conspiracy charge. As recounted above, the 

landlord’s testimony supported a finding that the cell phone that was the subject of 

the wiretap was Valenzuela’s. Further, in one recorded call, Valenzuela told an 

unidentified man that his landlord wanted him out of the house because of his 
- 8 - 

inability to pay the rent. In other calls, Valenzuela referred to his painting business 

and to himself as a painter. And the cell phone was tracked via GPS to Valenzuela’s 

house. All of this, combined with the references to him by name in the calls with 

Margarita and testimony that it was the same voice on the other intercepted calls 

containing the coded conversations, was sufficient for the jury to conclude that it was 

Valenzuela’s voice on all the calls. And although Valenzuela and those he spoke 

with used code words, we have previously held that a jury could rely on expert 

testimony to determine that co-conspirators used code words when referring to drugs. 

See United States v. Earls, 42 F.3d 1321, 1324-25 (10th Cir. 1994). Here, there was 

expert testimony regarding the use of code words, and those coded references were 

more than sufficient for the jury to find that Valenzuela was discussing drug sales, 

particularly when viewed in connection with the evidence that drugs were found in 

Valenzuela’s bedroom. We will not recount all of those references but instead recite 

several illustrative examples. 

During three closely spaced conversations with a man referred to as “Chapo” 

(allegedly Zetina), Valenzuela said “I’ll give you the price that we’ll give to . . . to 

the . . . to that person that we sell to in bulk. And it costs him 16,800.” Supp. R., 

Vol. 1 at 25.3

 Chapo told Valenzuela: 

And I brought him a . . . a . . . a sample to do the paint test on, and the 

guy liked it, uh, because what he uses, uh, is very . . . is . . . is more . . . 

 

3

 All ellipses in quotes from the recorded conversations are part of the 

transcript. 
- 9 - 

is worse, and they’re charging more for the . . . the bucket. And he’s 

interested. Uh, but the problem is that here he . . . he . . . he just asked 

for some from the other store. So then he tells me that if . . . that if we 

have some right now, uh, in . . . I just now saw the paperwork, they 

already have it there. I don’t know if you have buckets of paint 

available. 

Id. at 27. Valenzuela told Chapo to tell the buyer “that we do have some” but it was 

“already spoken for as well. It’s already ordered. By the . . . by the client. Uh, but 

tomorrow, most likely at night, or . . . or in the morning on the following day, uh, 

we’ll have what . . . what he needs here.” Id. at 29. Chapo said that the buyer could 

cancel his other order if Chapo “had the bucket today” and that the buyer could not 

leave “the stuff without . . . without paint, right?” Id. at 32. Chapo also pointed out 

that the other supplier was “charging 18,500 per bucket, and it’s worse. I mean, it’s 

bad, our . . . our . . . our paint is better.” Id.

 In another conversation, Chapo told Valenzuela, “I have, uh, the paper in my 

hands. Uh, I’m just driving around to lose the tail[.]” Id. at 23. In yet another 

conversation, Chapo said, “And they already have the paperwork in hand. I mean, 

it’s . . . it’s already taken . . . the deal in order to . . . in order to . . . in order to go do 

the . . . in order to do the job, the . . . the . . . the handy work.” Id. at 51. Chapo 

added: “Because he’s the first client and to let him down, well, I . . . I’d be a little 

bothered.” Id. Valenzuela responded that “there isn’t a problem on this side, the . . . 

the . . . the problem is the . . . the thinner.” Id. at 52. He cautioned Chapo to “be 

very careful,” and told Chapo to “come by here if you want” in order “to see how we 

do it here.” Id.
- 10 - 

 Our final example comes from two other conversations with Chapo, who told 

Valenzuela that he had 

got[ten] a hold of this person. He does have the money, but well, it’s 

logical, he wants to see the paint, right? So tell me, how do you want 

me to proceed? He has . . . the . . . the guy already has the paper, uh, 

but he’s telling me that . . . that he wants to see the . . . the paint. 

Id. at 58. Valenzuela told Chapo to “take it to him.” Id. Chapo said the buyer was a 

“waiter here at the Red Lobster” who said he “‘want[s] to see the mer . . . the . . . the 

paint.’” Id. at 59. Valenzuela told Chapo “it’s just a matter of . . . of . . . of grabbing 

the bucket and taking it to him. That’s all, nothing else has to be done to it. It’s all 

sealed and closed[.]” Id. Chapo said another man named Pancho would accompany 

him “to make it safer.” Id. at 60. The next day, Chapo reported that “they wanted to 

steal the material from us. The . . . the bucket of green paint.” Id. at 62. He added, 

“We were able to save it, thank God,” and that the “green paint,” Chapo, and Pancho 

were all “OK.” Id.

 A reasonable jury could have concluded that these conversations proved 

Valenzuela was involved in the charged conspiracy. The repeated references to 

buyers interested in purchasing “paint” stored in “buckets” for amounts up to 

“18,500” reasonably suggest Valenzuela was employing code words for drugs when 

discussing potential sales with a co-conspirator. The jury’s verdict was amply 

supported by the wiretap conversations, expert testimony on use of code words, 

circumstantial evidence that the voice on the call was Valenzuela’s, and the 

testimony that the cell phone that was the subject of the wiretap was Valenzuela’s. In 
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sum, having reviewed the transcripts in light of all the evidence, and drawing all 

reasonable inferences in favor of the government, as we must, see Nelson, 383 F.3d 

at 1229, we conclude that there was sufficient evidence to support Valenzuela’s 

conviction on the conspiracy charge.

 As to the charge of possession with intent to distribute, Valenzuela argues 

there was insufficient evidence of his actual or constructive possession of the drugs 

found in his home and insufficient evidence of intent to distribute. But as we have 

recounted, a substantial quantity of methamphetamine was found in bedroom one, 

and Valenzuela had told his landlord that bedroom number one was his. Thus, the 

evidence supported a finding that Valenzuela constructively possessed the drugs 

found in bedroom one. See United States v. Lauder, 409 F.3d 1254, 1259 (10th Cir. 

2005) (stating that, “[i]n joint occupancy cases where possession is not clear, such as 

where the drugs may be attributed to more than one person,” constructive possession 

may be shown by “some nexus, link, or other connection between the defendant and 

the contraband”). Further, the intercepted telephone conversations provided 

additional evidence of Valenzuela’s intent to distribute. We conclude that there was 

sufficient evidence to support Valenzuela’s conviction for possession with intent to 

distribute. 

B. Sentencing

Valenzuela also challenges the procedural and substantive reasonableness of 

his sentence. “Procedural reasonableness involves using the proper method to 
- 12 - 

calculate the sentence.” United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir. 

2007). “Substantive reasonableness involves whether the length of the sentence is 

reasonable given all the circumstances of the case in light of the factors set forth in 

18 U.S.C. § 3553(a).” Id. We consider these challenges in order. 

1. Procedural reasonableness 

Valenzuela first argues that the district court committed procedural error when 

it applied a preponderance-of-the-evidence standard in determining whether the 

900 grams of methamphetamine found in the Passat were attributable to him. He 

claims that the court should have used the higher clear-and-convincing-evidence 

standard of proof because facts considered at sentencing dramatically increased his 

sentence. We rejected this argument on similar facts in United States v. Washington, 

11 F.3d 1510 (10th Cir. 1993). In Washington, this court held that the preponderance 

standard applied to findings of drug quantity at sentencing that resulted in an 

eight-level increase in base offense level (from 32 to 40). See id. at 1515-16. We 

considered this increase to be an “ordinary case,” and stated that “the Due Process 

Clause does not require sentencing facts in the ordinary case to be proved by more 

than a preponderance standard.” Id. at 1516. To the extent that this court has 

elsewhere intimated that a higher standard might apply in the extraordinary case, see, 

e.g., United States v. Olsen, 519 F.3d 1096, 1105 (10th Cir. 2008) (“[W]e have 

reserved the question of whether, in some extraordinary or dramatic case, due process 

might require a higher standard of proof.”), we decline to apply it here. The six-level 
- 13 - 

increase in Valenzuela’s case is less than the eight-level increase in Washington. 

Valenzuela’s case is, like Washington, not an “extraordinary or dramatic” one. See

Olsen, 519 F.3d at 1105. Accordingly, the district court did not commit procedural 

error in applying the preponderance standard.4

Valenzuela next argues that the government failed to prove that the 900 grams 

found in the Passat were attributable to him by a preponderance of the evidence.5

 A 

district court’s determination of drug quantity at sentencing is a factual finding 

“reviewed for clear error.” United States v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 

2005). At sentencing, the district court relied on the evidence at trial and “credit[ed] 

to some degree” Zetina’s deposition testimony, R., Vol. 2 at 518, which the court had 

ruled inadmissible at trial because the government failed to show that Zetina was not 

available to testify in person, see Fed. R. Evid. 804(a)(5) and 804(b)(1). In relevant 

part, Zetina, who stated that he was Chapo, testified that the day before officers 

seized the drugs from the Passat, which was registered to a known methamphetamine 

and cocaine dealer, he saw three pounds of methamphetamine on the kitchen table in 

 

4

 We are cognizant that Ninth Circuit law, on which Valenzuela relies, is to the 

contrary. See, e.g., United States v. Jordan, 256 F.3d 922, 930 (9th Cir. 2001) 

(requiring clear-and-convincing standard “when a sentencing factor has an extremely 

disproportionate impact on the sentence relative to the offense of conviction”). We 

are, however, bound by our own precedent and in any event do not find 

Jordan persuasive as regards the facts of this case. 

5

 Valenzuela also argues that the government did not meet its burden under the 

clear-and-convincing standard. Because that standard is not applicable to this case, 

we need not consider this argument. 
- 14 - 

the house he shared with Valenzuela. Valenzuela and two other men (including one 

of the men arrested in the Passat) were dividing up the methamphetamine to sell it. 

Zetina also testified that the drugs were still there the next day. The court concluded 

that the 900 grams found in the Passat “is probably, in my view of all of the 

evidence, a relatively small amount relative to what he was dealing with. I think he 

was apparently dealing with multiple pound transactions.” R., Vol. 2 at 518. 

Valenzuela contends that Zetina’s deposition testimony was uncorroborated 

and insufficiently reliable to connect Valenzuela to the drugs found in the Passat. 

We reject this proposition. First, corroboration is not essential in all cases. Rather, 

§ 6A1.3(a) of the Guidelines provides that a “court may consider relevant 

information without regard to its admissibility under the rules of evidence applicable 

at trial, provided that the information has sufficient indicia of reliability to support its 

probable accuracy.” The corroboration requirement identified in United States v. 

Ortiz, 993 F.2d 204, 207-08 (10th Cir. 1993), on which Valenzuela relies, stems from 

the commentary to § 6A1.3 requiring corroboration for statements made by an 

unidentified informant. Here, Zetina was not an unidentified informant but a 

potential trial witness who was deposed for the acknowledged purpose of preserving 

his testimony for trial, and he was subject to cross-examination. In the other case 

Valenzuela cites in support of his corroboration argument, United States v. Rosales, 

80 F. App’x 57, 60-61 (10th Cir. 2003) (unpublished), the court considered reliable a 

DEA agent’s affidavit detailing the agent’s purchase of 907 grams of 
- 15 - 

methamphetamine in part because the defendant corroborated the amount in a 

recorded conversation. However, there is no indication in Rosales that corroboration 

was required or that corroboration is required in every instance where a district court 

relies on unadmitted hearsay evidence at sentencing. Second, the district court relied 

only in part on Zetina’s testimony in finding that the quantity of drugs in the Passat 

was attributable to Valenzuela. See R., Vol. 2 at 518 (crediting Zetina’s unadmitted 

deposition testimony “to some degree”). There was other evidence linking 

Valenzuela to that quantity of drugs. 

 Valenzuela argues that the other evidence showed only that the Passat was 

present at Valenzuela’s home on the same day it was pulled over and the drugs found. 

He contends there was no evidence that the Passat’s occupants or anyone else entered 

or exited Valenzuela’s home or that Valenzuela was ever in possession of any 

amount of drugs at the time of his arrest or otherwise. The logical conclusion, 

Valenzuela posits, is that the 900 grams belonged to the Passat’s registered owner. 

But it is of little consequence that no officer saw the men who had arrived in the 

Passat actually enter Valenzuela’s house. The Passat remained behind Valenzuela’s 

house for two hours, Valenzuela arrived during that time, and Zetina had observed 

one of the Passat’s occupants at the house the day before dividing up three pounds of 

methamphetamine to sell. The district court could reasonably infer that all three men 

went into the house and that, regardless of who may have owned the 

methamphetamine, 900 grams were transferred to the Passat as part of a conspiracy 
- 16 - 

between Valenzuela and at least one other person to distribute it. Hence, we 

conclude that the trial evidence, coupled with Zetina’s testimony, was sufficient for 

the district court to find, by a preponderance of the evidence, that the drugs found in 

the Passat were attributable to Valenzuela. 

 2. Substantive reasonableness

Valenzuela’s final challenge concerns the substantive reasonableness of his 

below-Guidelines sentence. A below-Guidelines sentence is entitled to a “rebuttable 

presumption of reasonableness.” United States v. Balbin-Mesa, 643 F.3d 783, 788 

(10th Cir. 2011). To rebut that presumption, Valenzuela “must demonstrate that the 

district court abused the discretion afforded to it by Congress in sentencing under 

18 U.S.C. § 3553.” United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007). 

Under this standard, we defer to the district court’s judgment provided that the 

sentence falls within “a range of possible outcomes the facts and law at issue can 

fairly support,” id., and we will reverse “where a decision is either based on a clearly 

erroneous finding of fact or an erroneous conclusion of law or manifests a clear error 

of judgment,” id. at 1054 (quotation omitted). 

In an effort to rebut the presumption of reasonableness, Valenzuela contends 

that even the statutory five-year mandatory minimum sentence (which he asked for at 

sentencing) and his likely deportation to Mexico (he is legally in the country but not 

a U.S. citizen) would have devastating consequences for his family. He also claims 

that attributing to him the 900 grams of methamphetamine found in the Passat 
- 17 - 

unreasonably increased his sentence, and that his sentence was greater than necessary 

given his “lack of a criminal record, his work record, the community support he 

received, the support he provided to his family and employees, and his general good 

character,” Aplt. Br. at 22. But the district court considered these factors and varied 

downward from the bottom of the Guidelines range by fifty-five months. We cannot 

say that the court abused its discretion in refusing to vary further downward or that 

the sentence was not within the range of possible outcomes supported by the facts 

and the law. 

III. CONCLUSION 

 We AFFIRM Valenzuela’s convictions and sentence. 

 Entered for the Court 

 Mary Beck Briscoe 

 Chief Judge