* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The 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. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 30 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SALVADOR OROZCO-PENA, also known as Salvador Orozco, Defendant-Appellant. No. 97-1187 (D.C. No. 96-CR-386-S) (District of Colorado)

ORDER AND JUDGMENT *

Before BRORBY , EBEL and KELLY , Circuit Judges.
Salvador Orozco-Pena appeals his criminal convictio n and sentence. We affirm.
BACKGROUND After receiving information from two confidential i nformants, New Mexico narcotics police officer Heriberto Flores (“OfficerFlores”) traveled to Aurora,- 2 -

Colorado to investigate reports of cocaine traffick ing. (R. II at 36-37.) Working with the Aurora police department, Officer Flores and his informants set up a meeting with the suspected drug dealers. (Id. at 37-38.) Defendant-appellant Salvador Orozco-Pena (“Orozco-Pena”), using the nam e “Chava,” met with Officer Flores and his informants at the designatedsite and told them to follow him. (Id. at 42-43.) Orozco-Pena drove to a residence in Au rora. (Id. at 43.) He told Officer Flores and the two informants to go in side. (Id. ) Once inside, he negotiated with them about the sale of several kilo grams of cocaine at $19,500 a kilogram. (Id. at 44.) Another individual named Victor was prese nt, but OrozcoPena handled the negotiations. (Id. at 45, 52.) Officer Flores advised OrozcoPena that they had enough cash to buy three kilograms for $57,000. (Id. at 44- 45.) Orozco-Pena said that he could supply three k ilograms. (Id. at 45.) Officer Flores said he wanted to see one kilogram b efore buying. (Id. at 46.) Orozco-Pena called someone and then told Offi cer Flores that an individual who was in Denver would be bringing the kilogram ov er shortly. (Id. ) An individual in a red Suzuki arrived, came into the h ouse, and told Orozco-Pena “I have it with me.” (Id. at 47.) That individual, later identified as Jesu s QuinonesBaeza (“Quinones-Baeza”), (id. at 159-60, 174) handed the bag he was carrying to Orozco-Pena, who told Officer Flores to come upstai rs if he wanted to see it. (Id.1 Officer Flores testified that “Rolex” in this context is a designation of the

operation that owned that particular shipment of co caine. (R. II at 52.) - 3 - at 47.) Orozco-Pena, Quinones-Baeza, Officer Flore s, Victor, and one of the informants went upstairs. (Id. at 48) By the time Officer Flores got upstairs, Orozco-Pen a had a package labeled “Rolex” in black magic marker in a drawer. 1 (Id. ) He told Victor to get a knife to cut the plastic wrapping. (Id. ) Officer Flores cut into the package with his own knife and saw a white material whose characteri stics were consistent with cocaine and which he thought was cocaine. (Id. at 48-49.) Officer Flores told Orozco-Pena that he would call a companion to bring the money to consummate the deal. (Id. at 49.) Orozco-Pena and Quinones-Baeza responded that the other kilograms were packaged the same way and were no mo re than 30 minutes away. (Id. at 49, 79.) After leaving the residence, Officer Flores met with waiting police officers, who drafted a search warrant for the residence base d on his information. (Id. at 50.) When the warrant was executed, however, no co caine was found in the residence. (Id. at 75.) The red Suzuki left but was followed by p olice. (Id. at 105.) Although the tailing officers lost the Suzuk i, they were able to trace it by its temporary license tag. (Id. at 106.) The registration information led officer s to a trailer park, where they saw the red Suzuki. (Id. at 106-07.) When an officer2Orozco-Pena raised another issue -- whether the d istrict court abused its

discretion by allowing the government to reopen its case to admit exhibits -- but in his opening brief asked that this issue be withd rawn. (See Aplnt’s Br. at 6.) Consequently, we do not address that question. - 4 - was given permission to enter the trailer on the lo t to which the Suzuki was registered, a woman later identified as Maria Nieto threw a plastic bag out the door. (Id. 162-63.) The officer saw what appeared to be two bricks of narcotics fall from the bag. (Id. at 164.) Additional officers recovered a plastic bag and two packages marked “Rolex” from behind the trailer . (Id. at 122, 129.) In addition, a search of Quinones-Baez’s apartment yie lded white powder in a plastic wrapping with a “R” and an “O” on it. (Id. at 113-14, 161.) The contents of all three packages tested positive for cocaine. (Id. at 201.) Orozco-Pena was tried before a jury and found guilty of conspiracy to possess with intent to distribute cocaine in violat ion of 21 U.S.C. §§ 846 & 841 and of possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841 & 2. (Id. at 304-05.) He was sentenced to 78 months’ impris onment. (R. I at 11.) On appeal, he contends that his counsel was ineffective, that the district court improperly admitted statements by his allegedco-conspirators, and that there was insufficient evidence to support his conv iction of possession of a controlled substance. 2- 5 - DISCUSSION A. Ineffective Assistance of Counsel We generally do not address claims of ineffective a ssistance of counsel on direct appeal. See United States v. Gallegos , 108 F.3d 1272, 1279 (10th Cir. 1997). Such claims usually benefit from the devel opment of a factual record.
See id. at 1280. Because defendant’s arguments involve fa ctual issues that do not appear in the appellate record, this is not the unu sual case that should be heard on direct appeal. Cf. id. Consequently, we dismiss the ineffective assistan ce of counsel claim without prejudice. B. Admission of Co-Conspirator’s Statements Orozco-Pena also challenges the admission of statem ents made by Maria Nieto and Jesus Quinones-Baeza under Federal Rule o f Evidence 801(d)(2)(E). We review the factual findings in support of the ad mission of Rule 801(d)(2)(E) statements for clear error. See United States v. Lopez-Gutierrez , 83 F.3d 1235, 1242 (10th Cir. 1996). Under Rule 801(d)(2)(E), before admitting a stateme nt by an alleged coconspirator, the district court “must determine by a preponderance of the evidence that: (1) a conspiracy existed; (2) the declarant and the defendant were members of the conspiracy; and (3) the hearsay statements w ere made in the course of and in furtherance of the conspiracy.” Id. In order to find the existence of a- 6 -

conspiracy, a district court may not rely solely up on the statements at issue; there must be some evidence of a conspiracy independent o f the statements. See id. “Such independent evidence may be sufficient even w hen it is not ‘substantial.’” Id. (citation omitted). Orozco-Pena contends that the statements were erron eously admitted because the prosecution did not present any indepen dent evidence of a conspiracy involving Orozco-Pena and the declarants. To the c ontrary, the district court did not clearly err in finding that the government pres ented independent evidence of a conspiracy involving Orozco-Pena, Quinones-Baeza an d Nieto. (See R. II at 186- 94.) Quinones-Baeza responded to Orozco-Pena’s cal l to bring the cocaine, and tracing Quinones-Baeza’s vehicle led investigators to the trailer park where Maria Nieto was seen throwing out two bricks of cocaine. The package observed by Officer Flores and the packages of cocaine discover ed at the trailer park were clearly marked “Rolex,” and the cocaine found at Qu inones-Baeza’s apartment was marked with an “R” and an “O.” This is indepen dent evidence of a conspiracy involving Orozco-Pena and the declarants

. C. Sufficiency of the Evidence Finally, Orozco-Pena contends that there is insuffi cient evidence to convict him of possession with intent to distribute cocaine and conspiracy to possess with intent to distribute cocaine. In reviewing the suf ficiency of the evidence,- 7 -

generally we examine the entire record to determine whether a reasonable jury could find the defendant guilty beyond a reasonable doubt and take all evidence in the light most favorable to the government. See United States v. Urena , 27 F.3d 1487, 1489 (10th Cir. 1994). Because Orozco-Pena d id not move for a judgment of acquittal based on the insufficiency of the evid ence of possession, see Fed. R. Crim. P. 29(a), however, in this case we review forplain error, see Fed. R. Crim. P. 52(b). Whatever the standard of review, the government pre sented sufficient evidence to sustain Orozco-Pena’s convictions. The record shows that OrozcoPena conducted the negotiations for the drug deal and handled the cocaine at the residence. Orozco-Pena’s arguments regarding the d octrine of constructive possession ignore the fact that Orozco-Pena himself had the cocaine during the negotiations with Officer Flores. The government notes that the judgment of convictio n Orozco-Pena attached to his appellate brief states incorrectly that he pleaded guilty. The record shows that Orozco-Pena was convicted following a jury trial. Consequently, although we AFFIRM the district court’s judgment onthe merits, we REMAND with directions that the district court vacate its judgment and enter a judgment which reflects that Orozco-Pena was convicted by a jury.- 8 -

The mandate shall issue forthwith.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge