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 app eals 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 subm itted 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 This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel. The court generally disf avors 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 fa cility as part of a state sentence for drug distribution, Hector Ruiz began a methamphetamine operation. LoyaMedina supplied Ruiz with drugs, and Ruiz di stributed them with the assistance of Jamie Dominguez, Julio Ibarra, and Sa mmy 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 enforcemen t officers surveilled Ruiz and his associates as part of an extended investigation of their illegal dr ug activities. The Task Force also used a confidential informant and an undercover o fficer to make cont rolled drug buys from Ruiz’s network. The final controlled buy took place on D ecember 2, 2009. Loya-Medina brought methamphetamine to a room Perez had rent ed at the Budget Host motel near the Johnson’s Corner truck stop in northern Colora do. Ruiz diluted th e 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. Officer s arrested Hernandez and Ibarra in the Starbucks park ing lot. Ruiz was arrested at the Johnson’s Corner truck stop. Perez and Loya-Medina were arrest ed inside the motel room. After law enforcement officers obtained a warrant, they searched the motel room and seized additional methamphetamine as well as a gree n notebook identified at trial by Ruiz and Hernandez as a drug ledger be longing to Loya-Medina.-3- Ruiz, Ibarra, Dominguez, Hernandez, Pe rez, 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 distri bute 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-defe ndants pled guilty, but LoyaMedina and Melendez pled not guilty and were tried jointly. Ruiz, Dominguez, Hernandez, and Perez testified for the gove rnment in exchange for the government’s recommendation of reduced sentences. Melendez was acquitted but the jury convicted Loya-Medin a on both counts. The Presentence Report (“PSR”) concluded that the offense involved more than fifteen kilograms of methamphetamine, determined hi s criminal history to be Category I, and calculated his Guidelines recommended senten cing 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 moti on for a variance, imposing concurrent sentences of 180 months’ imprisonment on each count.
II Loya-Medina contends that the district court committed reve rsible error under Fed. R. Evid. 106 and the common law rule of complete ness by admitting some, but not all, of the notebook alleged to be his drug ledger. The cour t ordered the redaction of two-4- pages it deemed irrelevant because they “appea r[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, 11 96 (10th Cir. 2010). “[W]e will not disturb the distri ct court’s ruling absent a di stinct showing [that] it was based on a clearly erroneous finding of fact or an erroneous conclusion of law or manifests a clear error of judgm ent.” 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 provi des 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 othe r part—or any other wr iting or recorded statement—that in fairness ought to be considered at the same time.” Fed. R. Evid. 106. “In determining whether a disput ed portion of a statement must be admitted . . . the trial court should consider whethe r (1) it explains the admitte d 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 plai n error standard of review, arguing that Loya-Medina asserts for the first time on appeal that the specific ba sis for admitting the redacted pages was Rule 106 or the common la w rule of completeness. Because LoyaMedina’s claim of error fails under either st andard, we do not address this argument.-5- Loya-Medina fails to adequately devel op 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 no tebook . . . will show really where the origin of th at notebook came from,” Loya-Med ina 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 “misunde rstanding or distortion can be averted only through presentation of a nother 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 discre tion 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 Ci r. 2008). “The district court has discretion to grant a mistrial only when a defendant’s right to a fa ir 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-defenda nts would be admissible under Fe d. R. Evid. 801(d)(2)(E), concluding that sufficient evidence supported th e existence of a conspiracy. Later in the trial, the government attempted to introd uce testimony from a law enforcement officer about the confidential info rmant who bought drugs from Ruiz’s operation during the police investigation, and Me lendez’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 previous ly found a conspiracy existe d and that [the confidential informant], though unc harged, was a part of the cons piracy.” Both defendants immediately moved for a mistrial. In evaluating prosecutorial misconduct, “r eversal 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 th ree factors within the context of the case as a whole: (1) the curative acts of the distri ct court, (2) the extent of the misconduct, and (3) the role of the mi sconduct.” United States v. Por tillo-Quezada, 469 F. 3d 1345, 1352 (10th Cir. 2006). After briefing by all parties and a heari ng outside the presence of the jury, the district court denied the motions for a mi strial. 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 revers e 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 ev identiary objection, and it focused on the confidential informant without referencing either defend ant. Additionally, the motions for mistrial were made disc reetly, without drawing furthe r attention to the remark. Finally, the district court noted that its in itial instruction to th e jury included an explanation of what does and does not cons titute evidence and an admonition that the jury should not be influenced by the judge’s rulings on obje ctions. 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 th at a curative instruction to the jury would alleviate any prejudice to e ither defendant. When trial resumed, the court reminded the jury that neither the attorn eys’ statements nor th e 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 ju ry to disregard the government’s response to Melendez’s objecti on 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 permissi bly determined that the defendants’ right to a “fair and impartial trial [was not] impaired,” Meri dyth, 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 rema rk that government had established the elements of a conspiracy was not prejudicial when addressed to cour t rather than jury, made in context of an evidentiary objec tion, 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 harm less in light of the court’s conspiracy instruction.”); Unite d States v. Fellabaum , 408 F.2d 220, 226- 27 (7th Cir. 1969) (district cour t did not err in denying mistri al after prosecutor argued in the jury’s presence that evid ence was admissible because government had shown prima facie case of conspiracy, and court admitted the evidence). Our ru ling 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. 19 88). The court in Lance, however, affirmed the denial of a mistrial even though the comme nt was potentially more prejudi cial than the one at issue-9- here because it came from the judge rather than the prosecu tor. 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 admissib ility of coconspirator eviden ce before the jury, which included a statement that the evidence was su fficient to find by a preponderance of the evidence that Hester and A llen 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 statem ent in the final jury instruc tions distinguishes this case from Lance and requires reversal. We note th at Loya-Medina made no objection to the final jury instructions, which repeated the co urt’s frequent warning that statements made by the court and the attorneys ar e not evidence. Given that Loya-Medina has not directed us to a single case in which a court ruled th at 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 distri ct court erroneously computed the drug quantity attributable to him and the applicab le Sentencing Guidelines range, and thus based his downward sentencing variance on an in accurate base offense level. In general, we review the district c ourt’s drug quantity calculati on “under a clearly erroneous standard, and we will not distur b it unless it has no support in the record or unless, after reviewing all the evidence, we are firmly convi nced that an error has been made.” United States v. Nieto, 60 F.3d 1464, 1469 (10th Cir. 1995). In the in stant 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 ha d 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 unconvin ced that his vague arguments requesting a minimum sentence due to lack of serious involvement in the cr imes 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 am ounts 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 fa irness, 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 dr ug quantity calculati on was incorrect and that the district court erred by failing to make specific factual findings regarding the applicable drug quantity . He maintains that trial tes timony and the jury verdict found him responsible for much lower quantities of dr ugs than the fifteen k ilograms ascribed to him in the PSR. However, a district cour t may enhance a defenda nt’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. Bust amante, 454 F.3d 1200, 12 02 (10th Cir. 2006). Additionally, the sentencing ju dge “may accept any undisputed portion of the presentence-11- report as a finding of fact.” Fed. R. Crim . P. 32(i)(3)(A). The ju ry found Loya-Medina guilty of conspiring to distribute 500 gram s or more of methamphetamine and possession with intent to distribute 50 grams or more of methamphetamine, indicating only the minimum quantity of drugs attr ibutable to him for each co unt. See United States v. Lawrence, 405 F.3d 888, 90 7 (10th Cir. 2005) (“[T]he Supreme Court’s holding in Booker would not have prohibited the dist rict 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 a pply the Guidelines in a mandato ry fashion.”). The district court was therefore free to find that Loya-M edina 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 furt herance” 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 th e conspiracy-related methamphetamine to LoyaMedina, and thus no foreseeability finding is necessary. We agree th at in selecting his base offense level, the district court attri buted to Loya-Medina on ly 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 informati on relied upon has some basis of support in the facts of the-12- particular case and bears sufficient indicia of reliability.” United St ates v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2 005) (quotation omitted); see also U.S.S.G. § 2D 1.1 cmt. n.5 (“Where there is no drug seizure or the amount seized does not affect the scale of the offense, the court shall appr oximate the quantity of the co ntrolled substance.”). Police seized the methamphetamine that Loya-Med ina distributed the day of his arrest. Additionally, Ruiz testified th at Melendez sold him two to six ounces daily or every two days, with Loya-Medina supplying “about th e 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 calcula tion has sufficient support in the record. Therefore, any error by the district court in failing to make more specific finding s about drug quantity did not negatively affect Loya -Medina’s substantial rights or seriously undermine the fairness, integrity, or public reputa tion of the judicial proceedings.
V AFFIRMED

.

Entered for the Court

Carlos F. Lucero Circuit Judge