UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

ALPHONSO LOYA-MEDINA, 

Defendant - Appellant. 

No. 12-1042 

(D.C. No. 1:10-CR-00015-REB-7) 

(D. Colo.) 

ORDER AND JUDGMENT*

Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and PHILLIPS, 

Circuit Judge. 

 

Alphonso Loya-Medina appeals his conviction and sentence for conspiracy to 

distribute methamphetamine and possession with intent to distribute methamphetamine. 

Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm. 

 

* The case is unanimously ordered submitted without oral argument pursuant to 

Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not 

binding precedent, except under the doctrines of 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. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 15, 2014

Elisabeth A. Shumaker 

Clerk of Court
-2- 

I 

In spring 2009, while living in a community corrections facility as part of a state 

sentence for drug distribution, Hector Ruiz began a methamphetamine operation. LoyaMedina supplied Ruiz with drugs, and Ruiz distributed them with the assistance of Jamie 

Dominguez, Julio Ibarra, and Sammy Hernandez. Ruiz’s girlfriend, Stephanie Perez, 

frequently rented hotel rooms from which Ruiz ran the drug operation. 

Ruiz came to the attention of the Northern Colorado Drug Task Force during the 

summer of 2009. Law enforcement officers surveilled Ruiz and his associates as part of 

an extended investigation of their illegal drug activities. The Task Force also used a 

confidential informant and an undercover officer to make controlled drug buys from 

Ruiz’s network. 

The final controlled buy took place on December 2, 2009. Loya-Medina brought 

methamphetamine to a room Perez had rented at the Budget Host motel near the 

Johnson’s Corner truck stop in northern Colorado. Ruiz diluted the drug in the motel 

room, packaged seven ounces into a raisin box, and asked Hernandez and Ibarra to 

deliver it to the buyer at a nearby Starbucks coffee shop. Officers arrested Hernandez 

and Ibarra in the Starbucks parking lot. Ruiz was arrested at the Johnson’s Corner truck 

stop. Perez and Loya-Medina were arrested inside the motel room. After law 

enforcement officers obtained a warrant, they searched the motel room and seized 

additional methamphetamine as well as a green notebook identified at trial by Ruiz and 

Hernandez as a drug ledger belonging to Loya-Medina. 
-3- 

Ruiz, Ibarra, Dominguez, Hernandez, Perez, Loya-Medina, and another alleged 

supplier named Hector Melendez were included in an indictment charging conspiracy to 

distribute 500 grams or more of a mixture or substance containing methamphetamine, in 

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), & 846. Loya-Medina was also 

charged with possession with intent to distribute fifty grams or more of a mixture or 

substance containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1) & 

841(b)(1)(B)(viii) and 18 U.S.C. § 2. Most of the co-defendants pled guilty, but LoyaMedina and Melendez pled not guilty and were tried jointly. Ruiz, Dominguez, 

Hernandez, and Perez testified for the government in exchange for the government’s 

recommendation of reduced sentences. 

Melendez was acquitted but the jury convicted Loya-Medina on both counts. The 

Presentence Report (“PSR”) concluded that the offense involved more than fifteen 

kilograms of methamphetamine, determined his criminal history to be Category I, and 

calculated his Guidelines recommended sentencing range to be 235-293 months. The 

district court adopted the PSR’s drug quantity calculation and Sentencing Guidelines 

computation but granted Loya-Medina’s motion for a variance, imposing concurrent 

sentences of 180 months’ imprisonment on each count. 

II 

Loya-Medina contends that the district court committed reversible error under 

Fed. R. Evid. 106 and the common law rule of completeness by admitting some, but not 

all, of the notebook alleged to be his drug ledger. The court ordered the redaction of two 
-4- 

pages it deemed irrelevant because they “appear[ed] to be the work of a child practicing 

his penmanship, grammar and art.” We review the district court’s evidentiary ruling for 

an abuse of discretion. United States v. Batton, 602 F.3d 1191, 1196 (10th Cir. 2010). 

“[W]e will not disturb the district court’s ruling absent a distinct showing [that] it was 

based on a clearly erroneous finding of fact or an erroneous conclusion of law or 

manifests a clear error of judgment.” Id. (quotation omitted).1

Rule 106 partially codifies the common law rule of completeness. United States v. 

Lopez-Medina, 596 F.3d 716, 734 (10th Cir. 2010). It provides that “[i]f a party 

introduces all or part of a writing or recorded statement, an adverse party may require the 

introduction, at that time, of any other part—or any other writing or recorded 

statement—that in fairness ought to be considered at the same time.” Fed. R. Evid. 106. 

“In determining whether a disputed portion of a statement must be admitted . . . the trial 

court should consider whether (1) it explains the admitted evidence, (2) places the 

admitted evidence in context, (3) avoids misleading the jury, and (4) insures fair and 

impartial understanding of the evidence.” Lopez-Medina, 596 F.3d at 735 (quotation 

omitted). The rule does not necessarily require admission of the entire writing or 

statement, only those parts that are relevant and “necessary to clarify or explain the 

portion already received.” Id. (quotation omitted). 

 1

 The government urges us to adopt a plain error standard of review, arguing that 

Loya-Medina asserts for the first time on appeal that the specific basis for admitting the 

redacted pages was Rule 106 or the common law rule of completeness. Because LoyaMedina’s claim of error fails under either standard, we do not address this argument. 
-5- 

Loya-Medina fails to adequately develop the argument that Rule 106 required 

admission of the redacted notebook pages. After citing defense counsel’s vague 

statement at trial that “the cartoons and that sort of thing in the notebook . . . will show 

really where the origin of that notebook came from,” Loya-Medina simply asserts that the 

redacted pages would have proved that the entirety of the notebook belonged to a child. 

To invoke the rule of completeness, it is necessary that “misunderstanding or distortion 

can be averted only through presentation of another portion” of the document at issue. 

Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 172 (1988). Loya-Medina has made no 

such showing. See United States v. Wright, 826 F.2d 938, 946 (10th Cir. 1987) (rule of 

completeness does not require admission of “portions of a writing which are neither 

explanatory of the previously introduced portions nor relevant to the introduced 

portions”). Loya-Medina provides no reason to believe that the unredacted majority of 

the notebook was something other than a drug ledger, and the evidence at trial uniformly 

supported the conclusion that it was. Given Loya-Medina’s failure, both at trial and on 

appeal, to explain how the redaction caused “misunderstanding or distortion,” we hold 

that the district court did not abuse its discretion in ordering redaction of the document. 

III 

Loya-Medina also argues that the district court should have granted his motion for 

a mistrial after the Assistant U.S. Attorney improperly referenced, in the jury’s presence, 

the court’s finding that a conspiracy existed for purposes of Fed. R. Evid. 801(d)(2)(E). 

We review the denial of a motion for a mistrial for abuse of discretion. United States v. 
-6- 

Ivory, 532 F.3d 1095, 1099 (10th Cir. 2008). “The district court has discretion to grant a 

mistrial only when a defendant’s right to a fair and impartial trial has been impaired.” 

United States v. Meridyth, 364 F.3d 1181, 1183 (10th Cir. 2004). 

Early in the trial and outside the presence of the jury, the district court ruled that 

statements made by co-defendants would be admissible under Fed. R. Evid. 801(d)(2)(E), 

concluding that sufficient evidence supported the existence of a conspiracy. Later in the 

trial, the government attempted to introduce testimony from a law enforcement officer 

about the confidential informant who bought drugs from Ruiz’s operation during the 

police investigation, and Melendez’s counsel objected on relevance grounds. In 

response, the prosecutor stated on the record and in the presence of the jury: “Your 

Honor, this court has previously found a conspiracy existed and that [the confidential 

informant], though uncharged, was a part of the conspiracy.” Both defendants 

immediately moved for a mistrial.

In evaluating prosecutorial misconduct, “reversal is required only if the improper 

conduct influenced the verdict.” United States v. Maynard, 236 F.3d 601, 606 (10th Cir. 

2000) (quotation omitted). We must “consider three factors within the context of the case 

as a whole: (1) the curative acts of the district court, (2) the extent of the misconduct, and 

(3) the role of the misconduct.” United States v. Portillo-Quezada, 469 F.3d 1345, 1352 

(10th Cir. 2006). 

After briefing by all parties and a hearing outside the presence of the jury, the 

district court denied the motions for a mistrial. It found that the prosecutor had 
-7- 

misspoken unintentionally and that the statement was not part of a pattern of misconduct. 

“We ordinarily will not reverse if the misconduct was merely singular and isolated.” 

United States v. Ivy, 83 F.3d 1266, 1288 (10th Cir. 1996) (quotation omitted). The trial 

judge also found that the comment’s impact on the jury was minimized because it was 

uttered without undue emotion, it was directed to the court rather than the jury, it was 

made in the discrete context of an evidentiary objection, and it focused on the 

confidential informant without referencing either defendant. Additionally, the motions 

for mistrial were made discreetly, without drawing further attention to the remark. 

Finally, the district court noted that its initial instruction to the jury included an 

explanation of what does and does not constitute evidence and an admonition that the 

jury should not be influenced by the judge’s rulings on objections. All of these factors 

support the conclusion that the role of the government’s misconduct was minor and did 

not merit declaration of a mistrial. 

Under these circumstances, the district court determined that a curative instruction 

to the jury would alleviate any prejudice to either defendant. When trial resumed, the 

court reminded the jury that neither the attorneys’ statements nor the court’s evidentiary 

rulings are evidence, and that such rulings are based upon a lower standard of proof than 

that needed for criminal conviction. The court instructed the jury to disregard the 

government’s response to Melendez’s objection and admonished them not to conclude 

from the judge’s statements or actions that he held any view on the proper verdict. 

“[C]onsider[ing] the trial as a whole,” Maynard, 236 F.3d at 606, we conclude that the 
-8- 

district court judge permissibly determined that the defendants’ right to a “fair and 

impartial trial [was not] impaired,” Meridyth, 364 F.3d at 1183, by the prosecutor’s 

remark. 

Although we have not addressed this precise circumstance, a number of our 

sibling circuits have ruled similarly. See, e.g., United States v. Tampas, 493 F.3d 1291, 

1302-03 (11th Cir. 2007) (prosecutor’s remark that government had established the 

elements of a conspiracy was not prejudicial when addressed to court rather than jury, 

made in context of an evidentiary objection, and “rendered harmless by [a] curative 

instruction”); United States v. Birges, 723 F.2d 666, 673 (9th Cir. 1984) (“Any error 

which may have occurred in permitting the discussion concerning the admissibility of a 

co-conspirator’s statement to occur in the presence of the jury was harmless in light of 

the court’s conspiracy instruction.”); United States v. Fellabaum, 408 F.2d 220, 226-

27 (7th Cir. 1969) (district court did not err in denying mistrial after prosecutor argued in 

the jury’s presence that evidence was admissible because government had shown prima 

facie case of conspiracy, and court admitted the evidence). Our ruling aligns with the 

holdings of these circuits. 

Loya-Medina relies on a Fifth Circuit case in which the court recognized the 

prejudicial nature of a trial judge’s comment affirming the existence of a conspiracy 

during an evidentiary ruling in the jury’s presence. United States v. Lance, 853 F.2d 

1177, 1182 (5th Cir. 1988). The court in Lance, however, affirmed the denial of a 

mistrial even though the comment was potentially more prejudicial than the one at issue 
-9- 

here because it came from the judge rather than the prosecutor. Id. at 1184; see also 

United States v. Hester, 140 F.3d 753, 758 (8th Cir. 1998) (“The district court’s sua 

sponte ruling on the admissibility of coconspirator evidence before the jury, which 

included a statement that the evidence was sufficient to find by a preponderance of the 

evidence that Hester and Allen were members of the conspiracy . . . was not so 

prejudicial as to require a mistrial or reversal.”). Loya-Medina suggests that the failure to 

include a specific curative statement in the final jury instructions distinguishes this case 

from Lance and requires reversal. We note that Loya-Medina made no objection to the 

final jury instructions, which repeated the court’s frequent warning that statements made 

by the court and the attorneys are not evidence. Given that Loya-Medina has not directed 

us to a single case in which a court ruled that statements similar to the one at issue 

required a mistrial, we hold that the district court did not abuse its discretion in denying 

the motion for a mistrial. 

IV 

Finally, Loya-Medina argues that the district court erroneously computed the drug 

quantity attributable to him and the applicable Sentencing Guidelines range, and thus 

based his downward sentencing variance on an inaccurate base offense level. In general, 

we review the district court’s drug quantity calculation “under a clearly erroneous 

standard, and we will not disturb it unless it has no support in the record or unless, after 

reviewing all the evidence, we are firmly convinced that an error has been made.” United 

States v. Nieto, 60 F.3d 1464, 1469 (10th Cir. 1995). In the instant case, the district court 
-10- 

relied on the undisputed drug quantity calculation in the PSR. Loya-Medina stated in his 

“Request for Downward Departure” that he had no objection “to the general statements in 

the presentence report,” and concedes that he did not object to the probation officer’s 

drug quantity calculation. We are unconvinced that his vague arguments requesting a 

minimum sentence due to lack of serious involvement in the crimes of conviction 

constituted a proper objection to the PSR under Fed. R. Crim. P. 32(f). 

This Court has “repeatedly held that if a defendant fails to object to his 

presentence report, he waives his right to challenge the district court’s reliance on it, 

unless the district court’s decision to do so amounts to plain error.” Ivy, 83 F.3d at 1297. 

Plain error exists “when there is (1) error, (2) that is plain, which (3) affects substantial 

rights, and which (4) seriously affects the fairness, integrity, or public reputation of 

judicial proceedings.” United States v. Hinson, 585 F.3d 1328, 1333 (10th Cir. 2009) 

(quotation omitted). 

Loya-Medina contends that the PSR’s drug quantity calculation was incorrect and 

that the district court erred by failing to make specific factual findings regarding the 

applicable drug quantity. He maintains that trial testimony and the jury verdict found 

him responsible for much lower quantities of drugs than the fifteen kilograms ascribed to 

him in the PSR. However, a district court may enhance a defendant’s sentence using 

facts found by the judge, as long as such findings do not mandatorily increase the 

sentence. See, e.g., United States v. Bustamante, 454 F.3d 1200, 1202 (10th Cir. 2006). 

Additionally, the sentencing judge “may accept any undisputed portion of the presentence 
-11- 

report as a finding of fact.” Fed. R. Crim. P. 32(i)(3)(A). The jury found Loya-Medina 

guilty of conspiring to distribute 500 grams or more of methamphetamine and possession 

with intent to distribute 50 grams or more of methamphetamine, indicating only the 

minimum quantity of drugs attributable to him for each count. See United States v. 

Lawrence, 405 F.3d 888, 907 (10th Cir. 2005) (“[T]he Supreme Court’s holding in 

Booker would not have prohibited the district court from making the same factual 

findings and applying the same enhancements and adjustments to [the defendant’s] 

sentence as long as it did not apply the Guidelines in a mandatory fashion.”). The district 

court was therefore free to find that Loya-Medina was responsible for a specific drug 

quantity above those amounts or, as it did in this case, to adopt the PSR’s findings. 

Loya-Medina also contends that although he may be held responsible for the 

“reasonably foreseeable acts and omissions of others in furtherance” of the conspiracy, 

U.S.S.G. § 1B1.3(a)(1)(B), the district court was required to make specific findings that 

the total drug quantities involved were foreseeable to him. The government responds that 

the district court did not attribute all of the conspiracy-related methamphetamine to LoyaMedina, and thus no foreseeability finding is necessary. We agree that in selecting his 

base offense level, the district court attributed to Loya-Medina only the “quantities of 

contraband with which he was directly involved.” § 1B1.3 cmt. n.2. 

“When the actual drugs underlying a drug quantity determination are not seized, 

the trial court may rely upon an estimate to establish the defendant’s guideline offense 

level so long as the information relied upon has some basis of support in the facts of the 
-12- 

particular case and bears sufficient indicia of reliability.” United States v. Dalton, 409 

F.3d 1247, 1251 (10th Cir. 2005) (quotation omitted); see also U.S.S.G. § 2D1.1 cmt. n.5 

(“Where there is no drug seizure or the amount seized does not affect the scale of the 

offense, the court shall approximate the quantity of the controlled substance.”). Police 

seized the methamphetamine that Loya-Medina distributed the day of his arrest. 

Additionally, Ruiz testified that Melendez sold him two to six ounces daily or every two 

days, with Loya-Medina supplying “about the same amount,” and the jury found LoyaMedina guilty of the conspiracy charged in the first count of his indictment, which 

spanned approximately six months (June 2009 through December 3, 2009). We conclude 

that the drug quantity calculation has sufficient support in the record. Therefore, any 

error by the district court in failing to make more specific findings about drug quantity 

did not negatively affect Loya-Medina’s substantial rights or seriously undermine the 

fairness, integrity, or public reputation of the judicial proceedings. 

V

 AFFIRMED. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge