1

The Honorable Laurie Smith Camp, United States District Judge for the

District of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-1765

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Jesus Ixta-Salazar, *

* [UNPUBLISHED]

Appellant. *

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Submitted: February 12, 2010

Filed: February 18, 2010 

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Before WOLLMAN, BYE, and MELLOY, Circuit Judges.

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PER CURIAM.

Jesus Ixta-Salazar was found guilty following a jury trial of conspiracy to

distribute methamphetamine, in violation of 21 U.S.C. §§ 841and 846, and being a

prohibited person in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5)(a).

The district court1

 sentenced Ixta-Salazar to 235 months’ imprisonment followed by

five years of supervised release. Ixta-Salazar appeals, contending the district court

erred in denying his request for judgment of acquittal. Ixta-Salazar also argues the

district court's sentence constitutes cruel and unusual punishment. We affirm.
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In May 2008, Ixta-Salazar was pulled over by police in Bellevue, Nebraska.

Officers discovered a loaded .45 caliber firearm during the subsequent search of IxtaSalazar’s vehicle. Ixta-Salazar stipulated he was in the United States illegally and he

owned the firearm discovered during the search.

At trial, the jury heard testimony from four government witnesses, all of whom

testified they witnessed Ixta-Salazar sell methamphetamine. Robert Morris testified

he obtained at least ten pounds of methamphetamine from Ixta-Salazar during the

period of the conspiracy. Another witness, Jarrod King, testified he received at least

two and a half pounds of methamphetamine from Ixta-Salazar during the same period.

Additionally, Fred Herron testified he saw Ixta-Salazar deliver methamphetamine to

King, who in turn delivered the drugs to Herron. Finally, Raymond Crawford

described two occasions on which Ixta-Salazar delivered methamphetamine to Morris

at his trailer.

Ixta-Salazar was found guilty following a jury trial of conspiracy to distribute

methamphetamine, in violation of 21 U.S.C. §§ 841and 846, and being a prohibited

person in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5)(a).

The first issue Ixta-Salazar raises is whether the evidence presented at trial was

sufficient to prove he participated in a conspiracy to distribute methamphetamine. We

review de novo Ixta-Salazar’s claim of insufficient evidence, “viewing evidence in the

light most favorable to the government, resolving conflicts in the government’s favor,

and accepting all reasonable inferences that support the verdict.” United States v.

Whirlwind Soldier, 499 F.3d 862, 869 (8th Cir. 2007) (internal quotation marks

omitted). The conviction will be sustained unless no reasonable jury could have found

the accused guilty of the crime charged. Id. A conviction on a conspiracy charge

requires that the government prove beyond a reasonable doubt (1) the existence of an

agreement to achieve an illegal purpose, (2) that the defendant knew of the agreement,

and (3) that the defendant knowingly became part of the agreement. United States v.
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Johnson, 470 F.3d 1234, 1237 (8th Cir. 2006). “Moreover, a conspiracy conviction

may be based on indirect or circumstantial evidence, including solely testimony from

co-conspirators.” Whirlwind Soldier, 499 F.3d at 870. After a careful review of the

record, we conclude the evidence was sufficient for the jury to find Ixta-Salazar guilty

of conspiracy to distribute methamphetamine.

Ixta-Salazar next argues that his sentence amounts to cruel and unusual

punishment, in violation of the Eighth Amendment. “[A] penalty may be cruel and

unusual because it is excessive and serves no valid legislative purpose.” Furman v.

Georgia, 408 U.S. 238, 331 (1972) (Marshall, J., concurring). In making its

determination, courts are guided by “objective indicia of society's standards, as

expressed in legislative enactments and state practice with respect to executions.”

Kennedy v. Louisiana, 128 S.Ct. 2641, 2650 (2008) (quoting Roper v. Simmons, 543

U.S. 551, 563 (2005)). Consensus is not dispositive, however. Whether a punishment

is disproportionate to the crime also depends on the standards elaborated by

controlling precedents and on courts’ own understanding and interpretation of the

Eighth Amendment’s text, history, meaning, and purpose. Id.

In this case, Ixta-Salazar was sentenced to 235 months’ imprisonment, which

represented the bottom end of the presumptive range under the sentencing guidelines.

Ixta-Salazar does not challenge the district court's calculation of the guidelines range.

In United States v. Rudolph, 970 F.2d 467, 470 (8th Cir. 1992), we held that the

mandatory minimum sentence of fifteen years imprisonment under § 924(e) is not

cruel and unusual punishment and does not violate the Eighth Amendment.

Subsequently, we held in United States v. Yirkovsky, 259 F.3d 704, 707 (8th Cir.

2001), that a sentence of 180 months’ imprisonment for possessing one round of

ammunition was not cruel and unusual in light of the mandatory minimum sentences

imposed by Congress. We reach the same conclusion here, and hold that IxtaSalazar’s sentence does not amount to cruel and unusual punishment.

We affirm.

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