UNITED STATES CO URT 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 Medar do Valdez Valenzuela on two counts, conspiracy to distribute a c ontrolled substance in violati on of 21 U.S.C. §§ 841(a)(1) and 846, and possession of a controlled su bstance with intent to distribute in violation of 21 U.S.C. § 841(a)(1). On th e first count, the jury found by special verdict that he had conspired to di stribute between 350 and 500 grams of

* After examining the briefs and appella te record, this pa nel 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 11, 2012 Elisabeth A. Shumaker Clerk of Court- 2 - methamphetamine. At senten cing, in addition to the quantity of drugs seized at Valenzuela’s house, the distri ct court attributed to Vale nzuela another 900 grams of methamphetamine found in a car, which in creased his base offense level under the United States Sentencing Guid elines from 30 (under the ju ry’s findings) to 36, and increased the base sentencing range from 97-121 months to 188-235 months. 1 The district court assessed a tw o-level increase against Valenz uela for being an organizer, leader, manager, or supervis or of criminal activity, resu lting in a sentencing range of 235-293 months, but varied downward from th at range and sentenced Valenzuela to 180 months’ imprisonment. Valenzuela appeals, contes ting the sufficiency of the evidence against him and the procedural and substantive reas onableness of his sentence. Exercising jurisd iction under 28 U.S.C. § 129 1 and 18 U.S.C. § 3742, we affirm Valenzuela’s co nvictions and sentence. I. BACKGROUND In August 2009, Valenzuela became the subject of a wi retap 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). Fe deral and local law enforcement agencies initiated an investigation, which included su rveillance of the house. On one occasion in late September 2009, an officer observe d two men in a Volkswagen Passat arrive

1 All references to th e Guidelines are to th e 2010 edition under which Valenzuela was sentenced.- 3 - at Valenzuela’s house and park behind it, out of the office r’s sight. The officer then observed Valenzuela arrive a nd also park in the back. About two hours after the men arrived in the Passat, they dr ove off in it. Another offi cer followed them to a hotel, where they spent a shor t time in a room and emerged w ith a suitcase, pillows, and a blanket. After the officers observed the driver of the Passa t commit a traffic violation, the officers stopped the Passat . The men consented to a search, which uncovered two plastic bags in the tr unk containing a total of 900 grams of methamphetamine. The two men, whom offi cers 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 exec uted at Valenzuela’s house. 2 Among other things, officers found three se parate bags contai ning a total of 132 grams of a mixture of metham phetamine and dimethyl sulf one (a dietary supplement used as a cutting agent). Th ese bags were found in th e southeast bedroom of the house, referred to at trial as bedroom numbe r 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 be droom, officers found .84 grams of pure methamphetamine and 27.2 gr ams of a mixture of meth amphetamine and dimethyl sulfone. In a third bedroom , officers found a handgun.

2 Valenzuela was not at the house wh en 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 ce ll-phone number: Valenzue la 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 calle d Valenzuela at th at number many times inquiring about the rent, he received calls from Valenzuela from that number (as shown by his caller ID), a nd he recognized Valenzuela’s voice on the voicemail greeting for that number. The landlord furthe r testified that he provided Valenzuela’s telephone number to a federa l investigator, who confir med that it was the same number that was the subject of the wiretap. Regarding bedroom number one, the landl ord 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 a nd 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 Va lenzuela 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 reco rded wiretap conversations in Spanish, each of which wa s 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 tran slator testified that one of- 5 - the voices in every conversa tion belonged to the same person. In five of those conversations, a woman named Margarita ca lled that person by Valenzuela’s first name, “Medardo.” In the other conversati ons, Valenzuela was sometimes addressed as “Lalo” but never as Meda rdo. Although there was little or no direct reference to drugs, sales, or money, the government pr esented expert testimony from a DEA agent that drug traffickers often use code word s for drugs and money, and that one pound of methamphetamine (453.59 grams) sold fo r between $16,000 and $20,000. In this case, the government theorized, Valenzuela a nd his alleged co-conspi rators used code words such as “paint” for methamphetamine, “thinner” for the cutting agent, and “bucket” of paint to refer to a one-pou nd quantity of methamphetamine. Because Valenzuela ran a legitimate painting business, the theory continued, paint-related code words would make it diffi cult for authorities to figure out that in fact he and his co-conspirators were talking about drugs. Other code wo rds 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 acquitt al in the district court. In this circumstance, our review techni cally is for plain error. See United States v. Kaufman , 546 F.3d 1242, 1263 (10th Cir. 2008). “Plain erro r occurs when there is- 6 - (1) error, (2) that is plain, which (3) affe cts substantial rights, and which (4) seriously affects the fairness, integr ity, or public reputation of judicial proceedings.” United States v. Gonzalez-Huerta , 403 F.3d 727, 732 ( 10th Cir. 2005) (quot ation omitted). However, as a practical matter, the standard actually applie d is the same as if there had been a motion for acquittal—de novo—b ecause a conviction in the absence of sufficient evidence is plainly an error affecting substantia l 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 erro r is sometimes invoked where a judgment of acquittal is not renewed at the close of all evidence, “yet the standard actually applied is essentiall y the same as if there ha d 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 th erefrom, 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 a nd impartial consideration of all the evidence in the case.” United States v. Clifton , 406 F.3d 1173, 1178 (10t h Cir. 2005) (quotation omitted). Evidence is evaluated “by cons idering 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 wei gh conflicting evidence nor consider the credibility of witnesses. In stead, we must simply determ ine 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 govern ment 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 th ere was no discussion of drug dealings, only references to “buckets of paint” and “paper.” Furthe r, he claims there was no testimony that he ever disc ussed buying or selli ng drugs or possessed any drugs or cash from selling large quantitie s of drugs. Finally, he clai ms 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 evid ence of interdependence. Having reviewed the record, we conclude that there was su fficient evidence to support the jury’s verdict on the conspiracy charge. As recounted above, the landlord’s testimony supp orted a finding that the cell pho ne 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 re ferred 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 re ferences 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 conversati ons, was sufficient fo r the jury to conclude that it was Valenzuela’s voice on all the calls. And al though 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 us ed 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 t hose coded references were more than sufficient for the jury to find that Valenzuela was discussing drug sales, particularly when viewed in connection wi th the evidence that drugs were found in Valenzuela’s bedroom. We wi ll not recount all of those re ferences 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 th e 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 conversa tions are part of the transcript.- 9 - is worse, and they’re charging more for the . . . the bucket. And he’s interested. Uh, but the probl em is that here he . . . he . . . he just asked for some from the other stor e. 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 bu cket 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 pe r bucket, and it’s worse. I mean, it’s bad, our . . . our . . . our paint is better.” Id. In another conversation, Chapo told Va lenzuela, “I have, uh, the paper in my hands. Uh, I’m just driving ar ound 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, th e . . . the . . . the handy work.” Id. at 51. Chapo added: “Because he’s the firs t client and to let him down, well, I . . . I’d be a little bothered.” Id. Valenzuela responded th at “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 he re 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 pe rson. 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 th e . . . the paint. Id. at 58. Valenzuela told Ch apo to “take it to him.” Id. Chapo said the buyer was a “waiter here at the Red Lobste r” 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, th ank God,” and that the “green paint,” Chapo, and Pancho were all “OK.” Id. A reasonable jury could have concl uded that these c onversations proved Valenzuela was involved in the charged c onspiracy. The repeat ed references to buyers interested in purchasing “paint ” stored in “buckets” for amounts up to “18,500” reasonably suggest Valenzuela was employing c ode words for drugs when discussing potential sales with a co-conspi rator. The jury’s verdict was amply supported by the wiretap conve rsations, expert testimon y on use of code words, circumstantial evidence th at the voice on the call wa s Valenzuela’s, and the testimony that the cell phone that was the su bject of the wiretap wa s Valenzuela’s. In- 11 - sum, having reviewed the transcripts in light of all the evid ence, 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 sufficie nt 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 construc tive possession of the drugs found in his home and insufficient evidence of intent to distribute. But as we have recounted, a substantial quantity of meth amphetamine was foun d in bedroom one, and Valenzuela had told his landlord that bedroom number one was his. Thus, the evidence supported a finding that Valenzue la 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 cas es where possession is not clear, such as where the drugs may be attributed to more than one person,” co nstructive possession may be shown by “some nexus, link, or ot her connection between the defendant and the contraband”). Further, the inte rcepted telephone conversations provided additional evidence of Valenzue la’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 procedur al and substantive reasonableness of his sentence. “Procedural reasonablenes s involves using the proper method to- 12 - calculate the sentence.” United States v. Conlan , 500 F.3d 1167, 1169 (10th Cir. 2007). “Substantive reasonabl eness 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-o f-the-evidence standard in determining whether the 900 grams of methamphetamine found in the Passat were attributable to him. He claims that the court shou ld have used the higher cl ear-and-convincing-evidence standard of proof because facts considered at sentencing dramat ically 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 quan tity 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 st ated 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 exte nt 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 Ci r. 2008) (“[W]e have reserved the question of whethe r, in some extraordinary or dramatic case, due process might require a higher standard of proof.”), we decline to a pply it here. The six-level- 13 - increase in Valenzuela’s case is le ss 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 di strict court did not commit procedural error in applying the pr eponderance standard. 4 Valenzuela next argues that the governme nt 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 determina tion of drug quantity at se ntencing is a factual finding “reviewed for clear error.” United States v. Dalton , 409 F.3d 1247, 1251 (10th Cir. 2005). At sentencing, the dist rict court relied on the evid ence at trial a nd “credit[ed] to some degree” Zetina’s deposition testimony, R., Vol. 2 at 518, which the court had ruled inadmissible at trial be cause 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 Chap o, testified that the day before officers seized the drugs from the Passat, which wa s 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 st andard “when a sentencing factor has an extremely disproportionate impact on the sentence relativ e to the offense of conviction”). We are, however, bound by our own preceden t 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. Vale nzuela and two other men (including one of the men arrested in the Passat) were di viding up the methamphetamine to sell it. Zetina also testified that the drugs were sti ll 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 poun d transactions.” R., Vol. 2 at 518. Valenzuela contends that Zetina’s deposition testimony was uncorroborated and insufficiently reliable to connect Vale nzuela to the drugs found in the Passat. We reject this proposition. First, corroborati on 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 admissib ility under the rules of evidence applicable at trial, provided that the information has su fficient indicia of reli ability to support its probable accuracy.” The corrobora tion requirement identified in United States v. Ortiz , 993 F.2d 204, 207-08 (10th Cir. 1993), on which Valenz uela relies, stems from the commentary to § 6A1.3 requiring co rroboration for statements made by an unidentified informant. Here, Zetina wa s not an unidentified informant but a potential trial witness who was deposed fo r the acknowledged purpose of preserving his testimony for trial, and he was subject to cross-examin ation. 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 th e agent’s purchase of 907 grams of- 15 - methamphetamine in part because the defendant corroborated the amount in a recorded conversation. Howeve r, there is no indication in Rosales that corroboration was required or that corrobora tion is required in every inst ance where a district court relies on unadmitted hearsay ev idence at sentencing. Second, the district court relied only in part on Zetina’s testim ony 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 so me degree”). There was other evidence linking Valenzuela to that quantity of drugs. Valenzuela argues that the other ev idence showed only th at 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 Pa ssat’s occupants or anyone else entered or exited Valenzuela’s home or that Vale nzuela was ever in possession of any amount of drugs at the time of his arrest or otherwise. Th e logical conclusion, Valenzuela posits, is that the 900 grams belong ed to the Passat’s registered owner. But it is of little consequence that no o fficer saw the men who had arrived in the Passat actually enter Valenz uela’s house. The Passat re mained behind Valenzuela’s house for two hours, Valenz uela arrived during that tim e, and Zetina had observed one of the Passat’s occupants at the house th e day before dividing up three pounds of methamphetamine to sell. Th e district court could reasona bly 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 di stribute it. Hence, we conclude that the trial evidence, coupled with Zetina’s testimony, was sufficient for the district court to find, by a preponderan ce of the evidence, that the drugs found in the Passat were attri butable to Valenzuela. 2. Substantive reasonableness Valenzuela’s final challe nge concerns the substan tive 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 affo rded 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 di strict court’s judgment provided that the sentence falls within “a ra nge of possible outcomes the facts and law at issue can fairly support,” id. , and we will reverse “where a deci sion is either based on a clearly erroneous finding of fact or an erroneous conclusion of la w or manifests a clear error of judgment,” id. at 1054 (quotation omitted). In an effort to rebut the presumption of reasonableness, Va lenzuela contends that even the statutory five-year mandatory minimum sentence (whi ch he asked for at sentencing) and his likely depor tation to Mexico (he is legally in the country but not a U.S. citizen) would have de vastating 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 great er than necessary given his “lack of a criminal record, hi s 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 th e Guidelines range by fifty- five months. We cannot say that the court abused it s discretion in refusing to va ry 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 convic tions and sentence.

Entered for the Court

Mary Beck Briscoe Chief Judge