UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Pl aintiff - Appellee,

v. MARY GONZALES, Defendant - Appellant. No. 21-2099 (D.C. No. 1:19-CR-00240-KWR-1) (D.N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , KELLY , and PHILLIPS , Circuit Judges.

________________ _________________ A jury found Mary Gonzales guilty of four felony of fenses: possessing methamphetamine and heroin with intent to distribute, posse ssing a firearm in furtherance of a drug-trafficking crime, and possessing a firearm as a felon. On appeal, Gonzales mainly ar gues that the district cour t erred by not suppressing two incriminating statements she made to the police before re ceiving the warnings recited
in Miranda v. Arizona , 384 U.S. 436, 479 (1966). We need not decide the Miranda issue, because we conclude that any e rror was harmless beyond a reasonable doubt. We thus affirm her c onviction and sentence.

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 16, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-2099 Document: 010110784522 Date Filed: 12/16/2022 Page: 12 BACKGROUND I. Factual Background Socorro County Sheriff’s Deputy Richard Lopez receiv ed information that on June 7, 2018, Mary Gonzal es would be delivering meth amphetamine to a certain house in Socorro, New Mexico. Javier Ma rtinez, a known drug d ealer, lived in the house. On the afternoon of June 7, as Deputy Lopez was surve illing the area in response to the tip, he saw Gonzales arrive at Martinez’s house in her truck. Deputy Lopez rushed from his vehicle to get a be tter look. From behind a neighbor’s fence about forty to fifty yards away, he saw Veronica Soto-Paz, Martinez’s girlfriend, interact with Gonzales at her truck for about thirty se conds. From what Deputy Lopez could see, he believed that a dr ug transaction had just occurred. When Gonzales drove away, Deputy Lope z returned to his patrol vehicle, pursued her, and stopped her. He approached Gonzales’s tr uck and asked her to step out; she complied. He confronted Gonzales by telling her a lie—that he had a source in Martinez’s house who told him Gon zales was dealing drugs. Deputy Lopez observed a plastic bag sticki ng out of her shirt. Believ ing that the bag contained drugs, Deputy Lopez ordered her to give it to him. As directed, Gonzales handed Deputy Lopez the bag, acknowledging that “[i]t’ s in my shirt.” R. vol. III, at 114. The bag appeared to contain methamphetamine ; chemists later determined that it contained 10.68 grams of pure metham phetamine. Sometime during the brief conversation, Gonzales disclo sed to Deputy Lopez that she had to “drop off,” which Deputy Lopez took to mean delivering drugs. Id. at 149–50. Appellate Case: 21-2099 Document: 010110784522 Date Filed: 12/16/2022 Page: 23 Deputy Lopez then handcuffed Gonzales a nd asked if she had any other drugs. Though handcuffed, she manage d to reach inside the truc k and hand Deputy Lopez a small pouch containing 48.3 gr ams of pure methamphetamine, 24.61 grams of heroin, some prescription Suboxone strips, a digital scale, a nd a glass methamphetamine pipe. With Gonzales’s consen t, Deputy Lopez searched he r purse and found a loaded .22 caliber revolver. Even after Gonzales made two incriminating statements—that she had to “drop off” and that the plas tic bag of methamphetamine was “in [her] shirt”—she continued making incriminati ng statements during the roadside stop without receiving Miranda warnings. Only at the poli ce station did Deputy Lopez read Gonzales those warnings. She made more incr iminating statements there. A federal grand jury later indicted Go nzales for possession with intent to distribute fifty grams or more of methamphetamine under 21 U.S.C. § 841(a)(1), possession with intent to distribute heroin under § 841(a)(1), fe lon in possession of a firearm under 18 U.S.C. § 922(g)(1), and po ssessing a firearm in furtherance of a drug-trafficking crime under § 924(c)(1)(A)(i).
II. Procedural Background Gonzales filed two pretrial motions to suppress. In her first motion, she argued that Deputy Lopez lacked reasonable suspic ion to pull her over. After a hearing, the district court denied this motion. 1 In her second motion, Gonzales sought to suppress

1 Gonzales does not challenge this ru ling, and we express no opinion whether the stop was valid without an observed traffic violation. Appellate Case: 21-2099 Document: 010110784522 Date Filed: 12/16/2022 Page: 34 her roadside statements to Deputy Lopez as Miranda violations; her post- Miranda statements at the station as involuntary under the Fift h Amendment; and the drugs, firearm, and any testimony about them as fruit of the poisonous tree. The district court held an evidentiary hearing on the second motion to suppress and afterward granted the motion in part a nd denied it in part. The court suppressed Gonzales’s roadside statements made afte r the handcuffing and her statements at the police station. 2 But it declined to suppress the drugs, the firearm, or Gonzales’s roadside statements before she was handcuffed. The court determined that Gonzales was not in custody before being ha ndcuffed, ruling out any asserted Miranda violation. At trial, the government called four witnesses: Deputy Lopez, two Drug Enforcement Administration (DEA) chemis ts, and an FBI agent. Deputy Lopez testified about the events fro m June 7, 2018. He related the inside information that Gonzales would be delivering drugs at Ma rtinez’s house that day, described the interaction between Gonzales and Soto-P az, and recounted the traffic stop and Gonzales’s handing him the two bags containing methamphetamine and heroin. During his testimony, Deputy Lopez al so identified the two samples of methamphetamine, the heroin, the revolve r, and the ammunition from the revolver.

2 The district court suppressed Gonzal es’s police-statio n statements as involuntary confessions because Deputy Lop ez made coercive, misleading promises of leniency. Appellate Case: 21-2099 Document: 010110784522 Date Filed: 12/16/2022 Page: 45 On cross-examination, the defense que stioned him about seeing Soto-Paz at Gonzales’s truck and about his location duri ng the surveillance. After defense counsel suggested that the Suboxone strips (u sed to treat heroin addiction) and methamphetamine pipe meant the drugs we re for Gonzales’s personal use, Deputy Lopez testified on redirect examination th at drug dealers typically use drugs. Not until redirect did Deputy Lopez reference Gonzales’s roadside statement about dropping off. The prosecutor asked, “[B]efore you placed Ms . Gonzales in a pair of handcuffs, did she say anything to you that indicated that she intended to distribute any drugs?” Deputy Lopez answered, “She di d say she had to drop off.” R. vol. III, at 149. He testified that based on his training and experience he understood that Gonzales was saying she had more drugs to deliver elsewhere. Next, the two DEA chemists testified a bout the drug samples that they tested. The first chemist testified that the two methamphetamine samp les were 100% pure and weighed 10.68 and 48.3 grams. The s econd chemist testifie d that the heroin weighed 24.61 grams. Finally, the government called an FBI agen t as an expert witness on firearms and drug trafficking. The agent had insp ected the revolver, ammunition, and drugs before trial. He testified that drug traffick ers often use firearms to protect themselves from being robbed. And he testified that deal ers often use digital scales to weigh their drugs for sale. Importantly, he also testif ied that the methamphetamine and heroin were both distribution quantities, not pers onal-use quantities. The agent estimated that 58.9 grams of pure methamphetamine w ould yield 235 to 589 doses and that it Appellate Case: 21-2099 Document: 010110784522 Date Filed: 12/16/2022 Page: 56 could be “stepped on,” or diluted with a cutting agent, to doubl e or triple those numbers. As for the heroin, th e agent testified that 24.61 grams represented 49 to 246 doses. Based on the dosages, the agent conclude d that a single user would be unlikely to have such amounts for personal use. The defense called Soto-Paz, who disput ed Deputy Lopez’s testimony that she had met Gonzales on June 7. She testifie d that she had never been to Martinez’s house when Gonzales was there. But on cross-examination, So to-Paz admitted that she dated Martinez in 2018, that she hers elf was a former drug user (but was not involved in drug dealing), a nd that she knew Gonzales a nd her family. The defense also called Gonzales’s brother, who testif ied that he gave Gonz ales the firearm to return to their father the day before she was arre sted, despite knowing that she was a felon. Though the district court’s suppressi on order allowed the government to introduce Gonzales’s two pre-handcuffing st atements, the government failed to admit either Deputy Lopez’s body-camera video of his encounter with Gonzales or the accompanying transcript. Had the government done so, the jury would have heard the full context of the encounter: DEPUTY LOPEZ: What else do you have on you right now? MS. GONZALES: I got something else to drop off. DEPUTY LOPEZ: Okay. Give it to me . One of your sources and I can also see it in your sh irt, so hand it to me. MS. GONZALES: It’s in my shirt. R. vol. II, at 50. During its closing argum ent summarizing its evidence in support of the drug charges, however, the government quoted Gonzales as saying she had Appellate Case: 21-2099 Document: 010110784522 Date Filed: 12/16/2022 Page: 67 “something else to drop off.” R. vol. III, at 299, 302, 322. 3 It argued Gonzales’s statement, together with the FBI agent’ s testimony about distribution quantities and the presence of the digital scale, proved her intent to distribute. The defense countered that Gonzales’s admission—in it s words, that “she had dropped something off”—referred to her plan to take the firearm to her father (though the firearm was in her purse inside the truck). Id. at 316. The district court instru cted the jury to give Gonzales’s statement “the weight you th ink it deserves.” R. vol. I, at 538. The jury convicted Gonzales on all four counts. The court sentenced her to 195 months’ imprisonment from an advisory guideline range of 181 to 211 months. Gonzales timely appealed.
STANDARD OF REVIEW We review de novo a motion-to-s uppress ruling about an alleged Miranda violation. United States v. Williston , 862 F.3d 1023, 1031 ( 10th Cir. 2017) (citing United States v. Jones , 523 F.3d 1235, 1239 (10th Cir. 2008)). In doing so, we accept the district court’s factual findings unless they are clearl y erroneous, and we view the evidence in the light most favorable to the prevailing party—here, the government. Id. We also review the entire r ecord de novo in evaluati ng whether alleged error is

3 Three times the government argued to th e jury that Gonzales said she had “something else to drop off.” R. vol. III, at 299, 302, 322. This accurately tracked the body-camera transcript, but the jury ne ver had that. Instead, it had only Deputy Lopez’s recollection that Gonzales said she “had to drop off.” Compare R. vol. II, at 50, with R. vol. III, at 149. Appellate Case: 21-2099 Document: 010110784522 Date Filed: 12/16/2022 Page: 78 harmless beyond a reasonable doubt. United States v. Perdue , 8 F.3d 1455, 1469 (10th Cir. 1993) (citations omitted).
DISCUSSION Gonzales raises three issu es for our review. She argue s (1) that the district court should have suppressed her pre-ha ndcuffing statements to Deputy Lopez because she was in custody and that admitting the stat ements was not harmless beyond a reasonable doubt, (2) that al l physical evidence derived from those statements should have been suppressed, and (3) that 18 U.S.C. § 922(g)(1) requires a greater showing than that the firearm ha d crossed state lines, or that Congress exceeded its Commerce Clause authority by enacting § 922(g)(1). Gonzales recognizes that the latter tw o issues are foreclosed by pr ecedent, so she is simply preserving them. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Harmless Error Gonzales asks us to find th at she was in custody under Miranda before she was handcuffed and thus argues th at the district court shoul d have suppressed her two incriminating responses to Deputy Lopez’s interrogation: “I got something else to drop off” and “It’s in my shirt.” R. vol. II, at 50. 4 Yet even with a Miranda violation, the government could still prevail by pr oving harmless error beyond a reasonable

4 At the outset, we note that althoug h Gonzales calls her second statement (“It’s in my shirt”) incrimin ating, she does not argue that this statement influenced the verdict. We thus focus on Gonzales’s fi rst statement, “I got something else to drop off,” which was undeniably incriminating. Appellate Case: 21-2099 Document: 010110784522 Date Filed: 12/16/2022 Page: 89 doubt. See United States v. Mikolon , 719 F.3d 1184, 1188 (10th Cir. 2013) (quoting United States v. Miller , 111 F.3d 747, 751 (10th Cir. 199 7)). In deciding this appeal, we will assume a Miranda violation and resolve the appeal based on whether that error was harmless beyond a reasonable doubt. Harmless error is erro r that “did not contri bute to the verdict.” Satterwhite v.
Texas , 486 U.S. 249, 256 (1988) (citing Chapman v. California , 386 U.S. 18, 24 (1967)). Error does not contribute to the verdic t when it is “unimportant in relation to everything else the jury considered on th e issue in question, as revealed in the record.” Yates v. Evatt , 500 U.S. 391, 403 (1991), disapproved of on other grounds by Estelle v. McGuire , 502 U.S. 62, 72 n.4 (1991). The government first elicited testimony about Gonzales’s statement during its redirect examination of De puty Lopez. But the jury never heard testimony about Deputy Lopez’s question, “What else do yo u have on you right now?” R. vol. II,
at 50. Nor did it ever hear Gonzal es’s full statement, “I got something else to drop off.” Id. The government did not offer into evidence any part of the body-camera footage or the accompanying transcript . All the jury hear d was Deputy Lopez’s recollection: “[Gonzales] did say she had to drop off.” R. vol. III, at 149. During closing argument, the govern ment referenced Gonzales ’s statement three times— while presenting its eviden ce for the two drug charge s and during its rebuttal. And the district court instructed the jury to give Gonzales ’s statement “the weight you think it deserves.” R. vol. I, at 538. Appellate Case: 21-2099 Document: 010110784522 Date Filed: 12/16/2022 Page: 910 We must consider this contested statem ent—that Gonzales “had to drop off,” R. vol. III, at 149—“in the contex t of other evidence presented.” United States v.
Russian , 848 F.3d 1239, 1248 (10t h Cir. 2017) (quoting United States v. Mullikin , 758 F.3d 1209, 1211 (10th Cir. 2014)). Practically, we mu st weigh “the properly admitted evidence of guilt” ag ainst the “prejudicial eff ect of the [defendant’s] admission.” United States v. Glass , 128 F.3d 1398, 1403 (10th Cir. 1997) (quoting Schneble v. Florida , 405 U.S. 427, 430 (1972)). For the government to prove harmlessness beyond a reasonable doubt, it mu st show that the properly admitted evidence was “so overwhelming” and that any prejudice was “so insignificant by comparison.” Id. After reviewing the whole record, we conclude that the government has established that any error in admitti ng Gonzales’s pre-handcuffing statement was harmless beyond a reasonable doubt. In considering the properly admitted evidence of guilt, we note that the government provided overwhelming proof of Gonzales’s intent to distribute the methamphetamine and heroin. The government admitted into evidence the drugs and the revolver and elicited testimony from Deputy Lopez and the FBI agent. Deputy Lopez testified that based on his inside information and his own perception, he believed that Gonzales had conducted a ha nd-to-hand drug transaction with Soto-Paz and that he confirmed this belief when he seized the drugs, scale, and firearm from Gonzales’s truck. He testified that digita l scales are often used by dealers to weigh drugs. Next, the FBI agent testif ied that in his experi ence, the quantities of methamphetamine and heroin seized were more consiste nt with distribution than Appellate Case: 21-2099 Document: 010110784522 Date Filed: 12/16/2022 Page: 1011 personal use. He told the jury that the methamphetamine was highly pure, meaning it could be diluted into hundreds of doses, a nd that Gonzales posse ssed at least fortynine doses of heroin. The agent also co rroborated Deputy Lopez’s testimony about digital scales being used by drug dealers. And he testified that drug dealers use firearms to protect themse lves from being robbed. Intent to distribute drugs is usua lly proven by circumstantial evidence. United States v. Powell , 982 F.2d 1422, 1430 (10th Cir. 1992) (citing United States v. Gay , 774 F.2d 368, 372 (10th Cir. 1985)). That in tent “may be inferr ed from the possession of a large quantity of the substance.” Id. (collecting cases). The physical evidence here, including 58.98 grams of pure metham phetamine and 24.61 grams of heroin, overwhelmingly established Go nzales’s intent to distribute. The FBI agent—who was admitted as an expert witness on drug traf ficking with no objection from Gonzales— testified that he had never seen a non- dealing personal user with as much methamphetamine and heroin as Gonzales had. This compelling expert evidence, combined with the fi rearm, the scale, and Deputy Lo pez’s eyewitness testimony, was overwhelming evidence of Gonzal es’s intent to distribute. As for prejudice from the testimony about Gonzales’s roadside statement, we agree with the government that any pr ejudice was comparatively insignificant. Gonzales calls her statement a “confession.” Opening Br. 28. A confession is a suspect’s “acknowledgment of guilt.” Confession , Black’s Law Dictionary (11th ed. 2019). It is “the most compe lling possible evidence of guilt.” Miranda , 384 U.S. at 466. But the Supreme Court has distingui shed between “statements by a defendant Appellate Case: 21-2099 Document: 010110784522 Date Filed: 12/16/2022 Page: 1112 [that] may concern isolated aspects of the crime or may be incriminating only when linked to other evidence” and “a full confession in which th e defendant discloses the motive for and mean s of the crime.” Arizona v. Fulminante , 499 U.S. 279, 296 (1991). 5 The latter type of confession “may temp t the jury to rely upon that evidence alone in reaching its decision.” Id. Gonzales’s incriminating statement falls into the former category of confessions because it bears on her intent to distribute but is meaningless without being linked to the physical evidence Deputy Lopez seized. Fulminante , 499 U.S. at 296. By itself, the statement that the jury heard was vague and ambiguous. Although the government argued that Gonzal es meant she had other drug deliveries in Socorro, defense counsel argued that G onzales was “dropping off” her father’s firearm. Had the government provided the full context—Deputy Lopez’s question and Gonzales’s full statement—it would have b een far more damning to her chances of acquittal. First, Gonzales’s exact st atement was that she had “something else to drop off,” strongly implying that she had alrea dy dropped off, whic h corroborated Deputy Lopez’s observation of a drug transaction. R. vol. II, at 50 (em phasis added). Second, Deputy Lopez asked her what sh e had “on [her] right now.” Id. The only item Gonzales had “on her” was the plastic ba g of methamphetamine, not the firearm in

5 The two categories of confessions are s ubject to the same de gree of harmlesserror review, but “the Court’s opinion [in Fulminante ] suggests that the latter category is less likely to be harmless.” United States v. Giddins , 858 F.3d 870, 886 n.10 (4th Cir. 2017). Appellate Case: 21-2099 Document: 010110784522 Date Filed: 12/16/2022 Page: 1213 her purse, as the defense argued she meant by “drop off.” As it stood, the jury heard only a truncated version of Gonzales’s st atement—that she “sa[id] she had to drop off.” R. vol. III, at 149. This statem ent’s low probative value helps quiet any concerns that it affected the verdict. Examining Gonzales’s defense theory also confirms our conclusion. She offered only a personal-use theo ry to counter her alleged in tent to distribute. She had no other choice; because “c ontrolled substances are ha rdly collector’s items, possession must be for one of two purposes, personal use or dist ribution to others.” United States v. Grant , 233 F. App’x 840, 84 4 (10th Cir. 2007) ( unpublished). Setting aside the implausibility of a drug user ha ving the financial means to stockpile 83.59 grams of controlled substances to consume over time, 6 the story Gonzales told the jury has several gaping holes of its own. Fo r instance, the jury ne ver heard any direct evidence that Gonzales was even a dr ug user, let alone that she used both methamphetamine and heroin. If the drugs we re for personal use, why were they in her truck? Why were they in two separate bags? See United States v. Allen , 235 F.3d 482, 492 (10th Cir. 2000) (c itations omitted) (noting th at the manner of packaging can support intent to distribut e). Why was one of the bags in her shirt? What was she doing at Martinez’s house? As for the firear m and the § 924(c) charge, if the firearm was her father’s, why didn’t her father te stify? Why was the fi rearm still loaded? See

6 The FBI agent testified that at a per-ounce price, methamphetamine was worth between $300 and $400 in 2018; he roin, between $800 and $1,600. Gonzales had about two ounces of methamphetamine and one ounce of heroin—worth between $1,400 and $2,400. Appellate Case: 21-2099 Document: 010110784522 Date Filed: 12/16/2022 Page: 1314 United States v. Poe , 556 F.3d 1113, 1127 (10th Cir. 2009) (noting that one factor under § 924(c) is whether th e firearm was loaded). The ju ry was left without answers to any of these questions. What’s more, if Gonzales’s unwarne d statement had been excluded, her defense theory would not have changed. Cf. United States v. Resendiz-Patino , 420 F.3d 1177, 1181–82 (10th Cir. 2005) (reasoning that based on the defense’s theory, the jury could not have drawn a favorable inference fo r the defense even without the allegedly erroneous evidence). The defense never addressed Gonzales’s statement during its case, nor did it call any witnesses to explain the statement. The trial would have proceeded just as it did—with the same physical evidence and testimony. The minuscule role the statem ent played in the government’s case and in Gonzales’s defense bolsters our confidence that “the guilty verdict actually rendered
in this trial was surely unattri butable to the error.” Sullivan v. Louisiana , 508 U.S. 275, 279 (1993). After weighing the strength of the govern ment’s case against the prejudicial effect of Gonzales’s unwarned statement, we hold that a ny district-court error was harmless beyond a reasonable doubt.
II. Derivative Physical Evidence Gonzales next argues that the drugs and firearm recovered during the stop should have been suppressed as physical fruits of her unwarned statements. Yet she acknowledges that United States v. Patane forecloses this argument. Patane held that derivative physical fruits of unwarned but otherwise voluntary statements are Appellate Case: 21-2099 Document: 010110784522 Date Filed: 12/16/2022 Page: 1415 admissible. 542 U.S. 630, 634 (2004) (plurality op.); id. at 645 (Kennedy, J., concurring in the judgment) (“Admission of nontestimonial physi cal fruits . . . does not run the risk of admitting into trial an accused’s coerced incriminating statements against himself.”); see also United States v. Phillips , 468 F.3d 1264, 1265 (10th Cir. 2006) (explaining Patane ’s holding). Because Supreme Court precedent answer s this argument, we affirm the district court’s ruling that the deri vative physical eviden ce was admissible.
III. Felon-in-Possession Conviction Finally, Gonzales makes two arguments about her conviction under the felonin-possession statute, 18 U.S. C. § 922(g)(1). In her view , § 922(g)(1) requires that a defendant’s possession somehow affect commerce, and simply showing that a firearm was once transported in interstate commerc e does not satisfy this requirement. Yet she acknowledges that Scarborough v. United States forecloses this argument. Scarborough held that the interstate-commerce- nexus requirement “was satisfied by proof that the firearm . . . po ssessed had previously travel ed in interstate commerce.” 431 U.S. 563, 566–67 (1977). Gonzales alternatively ar gues that Congress exceeded its Commerce Clause authority when it passed § 922(g)(1). She admits that this claim is also foreclosed by precedent, though she does not c ite a case. The government swoops in to help, citing United States v. Urbano , which rejected a facial inte rstate-commerce challenge to § 922(g)(1) under circuit precedent. 563 F.3d 1150, 1153–54 (10th Cir. 2009) (citations omitted). Appellate Case: 21-2099 Document: 010110784522 Date Filed: 12/16/2022 Page: 1516 Because Supreme Court and Tenth Circui t precedents answer these arguments, we affirm the § 922(g)(1) conviction.
CONCLUSION Any Miranda error in admitting into eviden ce Gonzales’s pre-handcuffing statements to Deputy Lopez was harmless beyond a reasonable doubt. We affirm Gonzales’s conviction and sentence.

Entered for the Court
Gregory A. Phillips Circuit Judge Appellate Case: 21-2099 Document: 010110784522 Date Filed: 12/16/2022 Page: 16