PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. SIMONA GALLEGOS, Defendant - Appellant. No. 13-6236

________________ _________________ Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:12-CR-00297-2)

________________ _________________ James L. Hankins, Edmond, Okla homa, for Defendant-Appellant. David McCrary, Assistant United States Atto rney (Sanford C. Coats, United States Attorney, and Leslie M. Maye , Assistant United States Atto rney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

________________ _________________ Before BRISCOE , Chief Judge, TYMKOVICH and MORITZ , Circuit Judges.

________________ _________________ MORITZ , Circuit Judge.

________________ _________________ Simona Gallegos appeals he r convictions for one co unt of conspiracy to distribute methamphetamine and to posse ss methamphetamine with intent to distribute in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1); two counts of possession of methamphetamine with intent to distribute in violation of 21 U.S.C. FILED United States Court of Appeals Tenth Circuit 

### April 30, 2015
Elisabeth A. Shumaker Clerk of Court2 § 841(a)(1); and one count of use of a communication facility to facilitate the distribution of methamphetamine in vi olation of 21 U.S.C. § 843(b). Gallegos argues (1) the district court er red in admitting the hearsay statements of her alleged co-conspirator s; (2) the government presen ted insufficien t evidence to support her convictions; (3) a fatal variance occurred because the indictment charged a single large conspiracy but the eviden ce at trial proved only multiple smaller conspiracies; (4) the district court erre d in admitting testimony regarding her codefendant’s post-arrest request for an attorney; and (5) th e cumulative effect of these errors requires reversal. Because sufficie nt evidence supports Gallegos’ convictions and because her remaining claims do not wa rrant reversal under our plain-error test, we affirm.
B ACKGROUND Simona Gallegos’ convictions arose from law enforcement’s investigation into the activities of Iran Zamarr ipa, the regional supervis or of an international methamphetamine ring. Based on her a lleged involvement in Zamarripa’s organization, Gallegos was tried alongside her common-la w husband, Pedro Juarez, and two of their alleged co-conspirators, Bani Moreno and Edgardo Josue Aguilar. At trial, Special Agent Casey Cox test ified about Moreno’s post-arrest request for an attorney. Althou gh Moreno initially agreed to sp eak with Cox, after Cox began to probe Moreno’s involvement in the drug tr ade, Moreno declined to answer further questions without an attorney present. None of the defendants’ attorneys objected to3 Cox’s testimony, and Moreno declined the district court’s o ffer of a curative instruction. Unlike Moreno and Aguilar, both of w hom purchased methamphetamine from Zamarripa by the pound, Galle gos assisted Juarez in obt aining considerably smaller quantities of methamphetamine from Zamarripa and his local manager, Alfredo Resendiz. For example, on one occasion, Zamarripa instru cted Resendiz to deliver a half-ounce of methamphetamine to Gallegos because Juar ez was at work. Gallegos partially paid for the fronted methamphetamine ten days la ter. On another occasion, Gallegos met Resendiz to pick up more methamphetamine for Juarez and to pay for a half-ounce of methamphetamine Zamarripa previously fronted Juarez. On still another occasion, Gallegos called Resendiz a nd used a code word to order a halfounce of methamphetamine for Juarez. In th at call, Gallegos stre ssed the need for prompt delivery because Juarez “ha[d] pe ople[] waiting.” Intercept Tr., Supp. R., at 8. When Resendiz arrived at the ap artment Gallegos and Juarez shared, he delivered the methamphe tamine to Gallegos. Based on this evidence, the jury found Gallegos guilty of one count of conspiracy to distribute methamphetamine and to possess methamphetamine with intent to distribute; two counts of posse ssion of methamphetamine with intent to distribute; and one count of use of a co mmunication facility to facilitate the distribution of methamphetamine. The dist rict court sentenced Gallegos to 144 months in prison, a nd Gallegos appealed.4 D ISCUSSION I. Gallegos forfeited her hearsay argument. Gallegos first argues the dist rict court erred in admitti ng hearsay statements of her alleged co-conspirators ab sent independent evidence sh e conspired with them to distribute methamphetamine. But because Gallegos fails to identify any specific statements on appeal, we dec line to reach this issue. See United States v. Thornburgh , 645 F.3d 1197, 1210 (10th Cir. 2011) (refusing to address appellant’s challenge to admission of co-conspirator statements when appellant neglected to identify any specific statements on appeal; failure to identify specific statements prevented court from determining whether stat ements were offered for tr uth of matters asserted); see also United States v. Lewis , 594 F.3d 1270, 1284-85 (10th Ci r. 2010) (declining to examine each record page ci ted in appellant’s brief to determine whether any coconspirator statements contained therein were hearsay and, if so, whether their admission prejudiced appellant).
II. The government presented sufficien t evidence to support Gallegos’ convictions, and any prejudice arising from the alleged variance does not warrant reversal under our plain-error test. A. Sufficiency of the Evidence Next, Gallegos challenges the sufficien cy of the evidence supporting all four of her convictions. Although the parties disagree as to whether we should review Gallegos’ sufficiency claims de novo or for plain error, a conviction in the absence of sufficient evidence will almost always satisfy all four plai n-error requirements. Thus, our review for plain error in this context di ffers little from our de novo review of a5 properly preserved sufficiency claim. See United States v. Rufai , 732 F.3d 1175, 1189 (10th Cir. 2013) (quoting United States v. Duran , 133 F.3d 1324, 1335 n.9 (10th Cir. 1998)) (concluding plain-error review and review for su fficient evidence “‘usually amount to largely the same exercise’”). U nder the sufficiency-of-the-evidence test, we view the evidence in the light most favorable to the government and ask whether the evidence—and any reasonable inferenc es to be drawn from it—would allow a reasonable jury to find the defenda nt guilty beyond a reasonable doubt. United States
v. Green , 435 F.3d 1265, 1272 (10th Cir. 2006). Likening the facts of this case to those in United States v. Evans , 970 F.2d 663 (10th Cir. 1992), Gallegos in sists we must reverse her conspiracy conviction under the “buyer-seller rule” becau se the government establis hed only that she obtained methamphetamine for personal use. See United States v. Patterson , 713 F.3d 1237, 1245-46 (10th Cir. 2013) (pointing out th at an individual who merely purchases drugs from a member of a cons piracy is not automatically part of the conspiracy); United States v. Watson , 594 F.2d 1330, 1337 (10th Cir. 1979) (recognizing “that proof of the existence of a buyer-seller rela tionship, without more , is inadequate to tie the buyer to a la rger conspiracy”). But unlike in Evans , where the evidence demonstr ated the defendant obtained crack-cocaine from a member of the conspiracy on a single occasion and solely for her personal use, the eviden ce here established Gallegos repeatedly procured methamphetamine from Resendiz on Juarez ’s behalf, knowing full well Juarez planned to distribute it. 970 F. 2d at 673. Under those circ umstances, the buyer-seller6 rule does not apply. See United States v. Ivy , 83 F.3d 1266, 1285- 86 (10th Cir. 1996) (explaining that purpose of buy er-seller rule is to sepa rate consumers who do not intend to redistribute drugs for profit fr om distributors who intend to further objective of conspiracy by dist ributing drugs to others). Gallegos disagrees, arguing the buyer-s eller rule precludes her conviction even if

she purchased methamphe tamine with the intent to distribute. Citing United States v. Johnson , 592 F.3d 749 (7th Cir. 2010), she ma intains that “a drug purchaser does not enter into a conspiracy with his supplie r simply by reselling the drugs to his own
customers.” Id. at 752. But Johnson ’s interpretation of the buyer-seller rule is contrary to this court’s precedent. See Ivy , 83 F.3d at 1285-86 (explaining buyerseller rule applies only to end users). Moreover, in Johnson the Seventh Circuit speci fically recognized that evidence of fronting coupled with evidence of repeat drug purchase s is sufficient “to distinguish a conspiracy fro m a nonconspiratorial buyer-s eller relationship.” 592 F.3d at 755 n.5. Here, Gallegos was involved in multiple drug transactions with Resendiz, and she both received and paid for fronted drugs. Thus, even under Johnson ’s broader interpretation of the buyer-seller rule, a reasonable jury could have found Gallegos acted as more than a mere buyer. To support Gallegos’ conspi racy conviction, the gove rnment was required to prove she (1) agreed with at least one othe r person to violate the law, (2) knew of the conspiracy’s objectives, and (3) knowingly and voluntarily involved herself in the conspiracy. The government also was requi red to demonstrate (4) interdependence7 among the co-conspirators. See United States v. Foy , 641 F.3d 455, 465 (10th Cir. 2011). Here, the jury heard a recorded te lephone call during which Gallegos asked Resendiz to deliver a half-ounce of metham phetamine to the ap artment she shared with Juarez because Juarez “ha[d] people[ ] waiting.” Intercept Tr., Supp. R., at 8. When Resendiz arrived, he delivered th e requested methamphetamine to Gallegos. From this evidence alone, the jury could have inferred an agreement to distribute methamphetamine. 1 See United States v. Johnson , 42 F.3d 1312, 1319 (10th Cir. 1994) (explaining jury may infer agreemen t between two or more parties based on circumstantial evidence indicating concerte d action directed toward common goal). Evidence showing Gallegos received methamphetamine from Resendiz on credit and paid Resendiz for methampheta mine he fronted Juarez provided further evidence of an agreement to distribute. See United States v. Small , 423 F.3d 1164, 1184 (10th Cir. 2005) (explaining that fr onting arrangement strongly suggests expectation individual who receives drugs on credit will redistribute them for profit); United States v. Nichols , 374 F.3d 959, 961, 969 (10th Cir. 2004), cert. granted,

1 Gallegos complains the government did not prove she agreed to distribute 85 pounds of methamphetamine as alleged in the indictme nt. But it didn’t have to. See United States v. Anaya , 727 F.3d 1043, 1050-51 & n.4 (10th Cir. 2013), cert. denied , 135 S. Ct. 419 (2014) (expl aining government need not prove defendant “knew of every type or amount of drug traffick ed” to support conspiracy conviction). Moreover, the government presented suffici ent evidence to prove Gallegos personally took part in drug deals invol ving more than two ounces of methamphetamine, which is more than the 50 grams for which the ju ry found the conspiracy responsible for sentencing purposes. See 21 U.S.C. 841(b)(1)(A) (author izing prison sentence of ten years to life when amount of methampheta mine possessed with intent to distribute exceeds 50 grams).8 judgment vacated , 543 U.S. 1113, opinion reinstated , 410 F.3d 1186 (10th Cir. 2005) (hypothesizing that evidence of fronting a rrangement would have allowed reasonable jury to find existence of agreement to distribute between defendant and supplier). The same evidence also was sufficient to prove Gallegos knew of the conspiracy’s objectives and knowingly and voluntary involved herself in the conspiracy. Based on Gallegos’ phone call to Rese ndiz—during which she used code to request delivery of a half -ounce of methamphetamine to the apartment she shared with Juarez because Juarez had people “waiting”—a reasona ble jury could conclude Gallegos was privy to the c onspiracy’s goal of distri buting methamphetamine. And from Gallegos’ repeated actions in furtherance of this goal, e.g. , calling Resendiz to order methamphetamine, accepting delivery of methamphetamine when Juarez was unavailable, and making paym ents for methamphetamine on Juarez’s behalf, a reasonable jury could also infer he r knowing and voluntary involvement. See United States v. Bell , 154 F.3d 1205, 1208 (10th Cir. 1998) (explaining jury may presume defendant who acts in furtherance of conspir acy’s goals is knowing participant). Finally, evidence of Gallegos’ participat ion in the fronting arrangement also demonstrated interdependence. See United States v. Acosta-Gallardo , 656 F.3d 1109, 1124 (10th Cir. 2011); Small , 423 F.3d at 1185 (citing United States v. Roberts , 14 F.3d 502, 511 (10t h Cir. 1993)) (reasoning fronting a rrangement creates situation of mutual dependence because se ller’s ability to front dr ugs depends on receipt of money due). Further, Gallegos be nefitted from her role in the arrangement even if she did not profit from it financia lly because her participation aided the endeavors of her9 common-law husband. Aplt. Br. at 29. See United States v. Hamilton , 587 F.3d 1199, 1209-10 & n.6 (10th Cir. 2009) (finding sufficient evidence of interdependence when defendant’s loyalty to half-bro ther, rather than desire to profit financially, motivated him to assist in ill egal drug business). We conclude the government presented sufficient evidence to prove Gallegos purchased methamphetamine, not merely fo r her personal use, but as part of a conspiracy to distribute it. And because Ga llegos’ challenges to the sufficiency of the evidence supporting her convictions for posse ssion with intent to distribute and use of a communication facility rely entirely on the alleged lack of evidence supporting her conspiracy conviction, we rej ect those challenges as well.
B. Variance In a related argument, Gallegos conte nds the government’s evidence failed to prove the conspiracy charged in the indictment, i.e. , the evidence va ried from the indictment. See United States v. Carnagie , 533 F.3d 1231, 1237 (10th Cir. 2008) (explaining variance arises when indictme nt charges single large conspiracy but government proves only existence of multiple smaller conspiracies at trial). In the context of a conspiracy conviction, we trea t a variance claim as a challenge to the sufficiency of the evidence establishing th at each defendant wa s a member of the same conspiracy. Id

. Because Gallegos did not raise her varian ce claim below, we review only for plain error. See United States v. Bailey , 327 F.3d 1131, 1142 (10th Cir. 2003). To show plain error, Gallegos mu st demonstrate (1) an error, (2) that is clear or obvious10 under current law, and (3) that affected he r substantial rights. If Gallegos makes such a showing, we may reverse only if (4) th e error seriously affected the fairness, integrity, or public reputation of the proceedings. United States v. Cooper , 654 F.3d 1104, 1117 (10t h Cir. 2011). Gallegos contends the government prove d—if anything—that she conspired with Juarez alone, rather th an with the members of the larger conspiracy. Gallegos argues this alleged variance created “a s ubstantial ‘spillover’ effect” by permitting the jury “to associate [her ] with crimes for which th ere was no evidence of her involvement ( i.e. , dealing with a Mexican drug carte l to acquire huge quantities of meth, shipping into the United States, operati ng a distribution network with interstate and even international scope, and distributi ng 85 pounds of meth).” Aplt. Br. at 30. But even assuming the existence of a variance that constitutes clear and obvious error, we find little risk of any “s pillover” here, let alone one so prejudicial as to satisfy the third pron g of the plain-error test. See United States v. RosalesMiranda , 755 F.3d 1253, 1258 (10th Cir. 2014) (explaining error affects defendant’s substantial rights for purpose s of plain-error test if defendant demonstrates reasonable probability result of proceeding w ould have been different but for alleged error). To determine whether a variance prejudiced the defendant in the context of an alleged conspiracy, we focus on the possibility of jury c onfusion and the strength of the evidence proving the defendant’s invol vement in the smaller conspiracy. See Carnagie , 533 F.3d at 1241, 1244. In assessing the possibility of jury confusion, we11 consider, among other things, the number of defendants tried toge ther and the number of separate conspiracies proved. We also look to the complexity of the evidence and the jury’s ability to distinguish the evidence against one defendant from the evidence against his or her co-defendants. See id. at 1242. Here, Gallegos was tried with only th ree other defendants and the government proved a maximum of three individual conspi racies. Moreover, the jury could have easily distinguished the evidence agains t Gallegos, who assisted in procuring methamphetamine in smaller quantities for her common-law husband, from the evidence against her co-defendants Moreno and Aguilar, who purchased methamphetamine from Zamarripa by th e pound. And overwhelming evidence established Gallegos’ i nvolvement in a smaller conspi racy with Juarez and Resendiz to distribute at least fift y grams of methamphetamine. Under these circumstances, Gallegos cannot show a reasonable probability the result of her trial would have been different but for the alleged variance. Thus, she fails to satisfy the third prong of our plain-error test. She also fails to satisf y the fourth prong. Given the overwhelming evidence establishing Gallegos’ involvement in th e smaller conspiracy , we conclude the alleged variance did not serious ly affect the fairness, inte grity, or public reputation of the proceedings. See United States v. Gonzalez Edeza , 359 F.3d 1246, 1251 (10th Cir. 2004) (interpreting fourth pron g of plain-error test to pr ohibit reversal when evidence of defendant’s guilt on charged crime or closely related crime is “‘overwhelming’12 and ‘essentially uncontroverted’” (quoting Johnson v. United States , 520 U.S. 461, 470 (1997))). Gallegos’ failure to meet the third and four th prongs of our pl ain-error test is fatal to her claim. See United States v. Algarate-Valencia , 550 F.3d 1238, 1243 & n.3 (10th Cir. 2008) (declining to address first prong of plain- error test when defendant’s failure to satisfy third pr ong was determinative of claim). Even if a variance occurred, it does not warrant reversal of Gallegos’ conspiracy conviction.
III. Gallegos fails to show the admission of Cox’s testimony warrants reversal. Next, Gallegos argues the district c ourt erred in admitting Cox’s testimony regarding Moreno’s post-arrest request for an attorney. Gallegos’ failure to object to Cox’s testimony again trigge rs plain-error review. See United States v. Rice , 52 F.3d 843, 845 (10th Cir. 1995) (applying plain-error review to unpreserved Doyle 2 claim). Gallegos maintains the jury viewed evidence of More no’s post-arrest request for an attorney as indicativ e of his guilt, and then imput ed evidence of Moreno’s guilt to her. But even if the jury viewed Co x’s testimony as eviden ce of Moreno’s guilt, Gallegos fails to demonstrate that ad mission of his testimony prejudiced her substantial rights. As discu ssed, the government presented distinct evidence against Moreno and Gallegos, giving the jury little reason to paint the two with the same broad brush. Moreover, in light of the overwhelming evidence of Gallegos’

2 In Doyle v. Ohio , 426 U.S. 610, 619 (1976), the United States Supreme Court concluded the use of the pe titioners’ post-arrest silence for impeachment purposes violated their due process rights. See also Wainwrig ht v. Greenfield , 474 U.S. 284, 286-87, 295 (1986) (applying Doyle to prosecutor’s comm ent on respondent’s postarrest request for attorney).13 involvement in at least the smaller conspiracy, Gallegos cannot show the admission of Cox’s testimony about her co-defendant a ffected the outcome of her own trial even if the jury somehow consider ed it as evidence of her gu ilt. Thus, Gallegos fails to satisfy our plain-error test. See Rosales-Miranda , 755 F.3d at 1258; AlgarateValencia , 550 F.3d at 1243 & n.3. IV. We reject Gallegos’ claim of cumulative error. Finally, for the reasons discussed above , we find Gallegos’ cumulative-error claim unpersuasive. Even if we a ssume the alleged variance and the Doyle violation constituted clear and obvious e rrors under current law, Gallegos fails to show that the effect of those errors—whe ther considered individually or cumulatively—warrants reversal of her convictions under plain-error review. See United States v. Caraway , 534 F.3d 1290, 1302 (10th Ci r. 2008) (noting defendant asserting cumulative unpreserved error must “overc ome the hurdles necessary to establish plain error”). C ONCLUSION We conclude that when viewed in the light most favorable to the government, the evidence was more than sufficient to support Gallegos’ c onvictions. And given the strength of this evidence, Gallegos’ clai ms regarding the alleged variance and the admission of Cox’s testimony fail under the th ird and fourth prongs of plain-error review. Gallegos’ convic tions are affirmed.