1

The Honorable Donald E. O'Brien, United States District Judge for the

Northern District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-3598

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Thomas Michael Morelos, *

*

Appellant. *

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Submitted: June 11, 2008

Filed: October 16, 2008

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Before MURPHY, BYE, and SHEPHERD, Circuit Judges.

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BYE, Circuit Judge.

A jury convicted Thomas Michael Morelos of one count of conspiracy to

distribute and possess with intent to distribute more than 500 grams of

methamphetamine mixture and more than 100 kilograms of marijuana in violation of

21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The district court1

 sentenced him to

306 months of imprisonment followed by five years of supervised release. Morelos

appeals his conviction and sentence. We affirm.
2

Murrillo-Guzmán described the buckets used to deliver the methamphetamine

as being eight to ten inches high with a diameter of eight inches – the type of bucket

used for plaster for drywall. Trial Tr. at 127-28.

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I

In April 2006, Morelos met a man named José Bernal at a car dealership in

South Sioux City, Nebraska, and the two discussed Bernal fronting Morelos two

pounds of marijuana. After Morelos assisted Bernal in distributing the marijuana,

Bernal began working with Morelos. Under Morelos's direction, Bernal went to

Rockford, Illinois, six or seven times to pick up marijuana and transport it back to

Sioux City. Bernal's girlfriend, Christy Swearingen, accompanied him on these trips.

Bernal and Swearingen also made two trips to Texas to transport marijuana, using a

false-bottomed livestock trailer owned by Morelos on one of the trips. Bernal

distributed marijuana in the Sioux City area at the direction of Morelos and gave the

money from those sales to Morelos.

Morelos was also involved in trafficking drugs with a man named Raphael

Murrillo-Guzmán. For a period of three years, Murrillo-Guzmán followed Morelos's

orders with respect to drug trafficking and made deliveries at the direction of Morelos.

Murrillo-Guzmán testified that, along with another man named Edwin Alvarez, he

delivered about ten "buckets"2

 of methamphetamine under Morelos's supervision.

On January 4, 2007, a drug task force asked a Sioux City police officer to pull

over a black GMC Sonoma occupied by Swearingen and Bernal. During the stop,

Bernal volunteered that there were four pounds of marijuana in the truck. As a result

of the evidence found during the stop and ensuing investigation, a grand jury indicted

Morelos for conspiring to distribute and possess with intent to distribute

methamphetamine and marijuana. The case went to trial. Following a three-day trial,

a jury found Morelos guilty.
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At sentencing, the district court calculated Morelos's base offense level at 38

pursuant to United States Sentencing Guidelines (U.S.S.G.) § 2D1.1(a)(3)(c)(1) based

on the amount of methamphetamine and marijuana involved in the offense. The

district court also found Morelos was a manager or supervisor in a drug conspiracy

involving five or more people and added three levels to the base offense level under

U.S.S.G. § 3B1.1(b). With a criminal history category of II, Morelos's advisory

guideline sentencing range was 360 months to life. Acting sua sponte, the district

court gave Morelos a fifteen percent reduction from the bottom end of the advisory

guideline range and imposed a sentence of 306 months followed by five years of

supervised release.

Morelos filed a timely appeal challenging the sufficiency of the evidence to

support the conviction. Morelos also appealed his sentence challenging the drug

amounts attributed to him, and the three level enhancement for his role in the offense.

Morelos also contends on appeal his 306-month sentence is unreasonable.

II

We first address Morelos's challenge to the sufficiency of the evidence "viewing

[the] evidence in the light most favorable to the government[.]" United States v.

Piwowar, 492 F.3d 953, 955 (8th Cir. 2007). "The standard for determining the

sufficiency of the evidence is strict, and a guilty verdict should not be lightly

overturned." United States v. Jiminez-Perez, 238 F.3d 970, 972-73 (8th Cir. 2001).

We will only reverse if no reasonable jury could have found Morelos guilty beyond

a reasonable doubt. See United States v. Dabney, 367 F.3d 1040, 1042 (8th Cir.

2004).

To convict Morelos, the government was required to prove beyond a reasonable

doubt that: (1) two or more persons reached an agreement to distribute and possess

with intent to distribute a controlled substance; (2) Morelos voluntarily and
3

Morelos also asserts his trial counsel was ineffective because he failed to object

to certain statements at trial. The record below is incomplete on this issue, however,

and the district court did not address it. We therefore decline to address it. See United

States v. Logan, 49 F.3d 352, 361 (8th Cir. 1995) (refusing to address ineffective

assistance claim on direct appeal when the district court had not examined the merits

of the claim); United States v. Kenyon, 7 F.3d 783, 785 (8th Cir. 1993) (declining to

address ineffective assistance claim on direct appeal when a proper factual record was

not made in the district court).

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intentionally joined the agreement; and (3) at the time Morelos joined the agreement,

he knew its essential purpose. See United States v. Harris, 493 F.3d 928, 931 (8th Cir.

2007) (citing United States v. Sherman, 440 F.3d 982, 990 (8th Cir. 2006)).

The evidence produced at trial showed Morelos conspired with several persons

to possess and distribute methamphetamine and marijuana. Three cooperating

witnesses testified they were personally involved with Morelos's drug dealing

activities. The testimony of each witness was corroborated by testimony from the

other co-conspirators, as well as disinterested witnesses, phone records, financial

records, and currency found during a search of Morelos's residence. This evidence

was more than sufficient to support the jury's verdict, notwithstanding Morelos's

challenge to the credibility of the three cooperating witnesses. See Dabney, 367 F.3d

at 1043 ("[W]e do not review questions involving the credibility of witnesses, but

leave credibility questions to the jury."); see also United States v. Frauendorfer, 428

F.3d 1115, 1118 (8th Cir. 2005) (holding the testimony of a single cooperating coconspirator is sufficient to support a guilty verdict).3

We next address Morelos's sentencing challenges to the drug amounts attributed

to him, and the three-level enhancement he received for being a manager or supervisor

in a conspiracy involving five or more persons. We review the district court's factual

findings on both issues for clear error. United States v. Thompson, 210 F.3d 855,

860-61 (8th Cir. 2000).
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With respect to drug quantity, the district court based its findings on the

evidence presented at trial, which showed: (1) Bernal and Swearingen made six or

seven trips to Rockford, Illinois, transporting between 100 and 200 pounds of

marijuana each time; (2) Bernal and Swearingen made two trips to Texas, transporting

just over 250 pounds of marijuana in total; (3) Murrillo-Guzmán and Alvarez

delivered ten "buckets" of methamphetamine at the direction of Morelos; (4) Morelos

received a shipment of ten pounds of pure methamphetamine at a farm in Nebraska

which, when cut, resulted in approximately fifty pounds of a mixture containing

methamphetamine; and (5) Alvarez delivered 700 pounds of marijuana to Rockford,

Illinois, at the direction of Morelos. Based on this evidence the district court

attributed the equivalent of 46,060 kilograms of marijuana to Morelos, triggering a

base offense level of 38 (requiring 30,000 kilograms or more of marijuana).

Morelos does not contend the trial testimony was insufficient to support a

finding of the equivalent of 46,060 kilograms of marijuana. Instead, Morelos argues

the district court erred because it did not independently evaluate the credibility of the

trial testimony at the time of sentencing. See United States v. Gutierrez, 437 F.3d

733, 736-37 (8th Cir. 2006) (concluding a district court erred by relying upon a jury

verdict to impose an obstruction enhancement, and by refusing to make an

independent determination as to drug quantity at the time of sentencing). We

disagree. 

At sentencing, the district court discussed the credibility of the trial witnesses

as to the drug amounts involved. After dwelling on its concerns about witness

credibility – noting in particular that Murrillo-Guzmán's testimony may have had

shortcomings – the district court ultimately concluded "I don't think that I can say and

find here that he too was worthless as a witness." Sent. Tr. at 24. Additionally, the

district court initially expressed concerns about the absence of Morelos's name in

documents relating to Edwin Alvarez. After being informed Morelos was, in fact,

identified in these documents but under the name "Santana," the district court accepted
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the explanation. This colloquy regarding Edwin Alvarez, as well as the comments

regarding Murillo-Guzmán, indicate the district court independently evaluated the

credibility of the witnesses with respect to drug quantity at the time of sentencing.

Our review of the record satisfies us that, while the district court may have had

concerns about witness credibility, it ultimately independently found a sufficient

amount of drugs could be attributed to Morelos to trigger a base offense level of 38.

With respect to the three-level enhancement for role in the offense, Morelos

asserts the evidence does not support the district court's conclusion he was a manager

or supervisor of a conspiracy involving at least five people. We disagree.

The district court found there were at least five people involved in the

conspiracy: Morelos (see United States v. Payne, 119 F.3d 637, 646 (8th Cir. 1997)

(indicating the defendant counts as a participant)), Bernal, Alvarez, Murillo-Guzmán,

and Swearingen. The enhancement under § 3B1.1(b) applies as long as Morelos

managed or supervised at least one other member of the conspiracy. United States v.

Gordon, 510 F.3d 811, 818 (8th Cir. 2007). Bernal, Murillo-Guzmán, and Alvarez

all testified that at some point during the conspiracy they were acting at the direction

of Morelos. Morelos directed Bernal to go on six or seven trips to Rockford, Illinois,

and to Texas; Morelos directed Murillo-Guzmán to deliver ten "buckets" of

methamphetamine; and Morelos paid Alvarez $1000 a week to transport drugs and

supplied him with the vehicle used to transport the drugs. Given this evidence, the

district court did not clearly err in finding Morelos was a manager or supervisor.

Finally, Morelos challenges the reasonableness of the 306-month sentence he

received. More specifically, Morelos contends the district court – in imposing a

fifteen percent downward variance sua sponte – mistakenly believed its discretion to

vary downward even more was limited by United States v. Gall, 446 F.3d 884 (8th

Cir. 2006), which was later reversed by Gall v. United States, 128 S.Ct. 586 (2007).

Because Morelos failed to object to the district court's interpretation of the applicable
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law at the time of sentencing, we review this issue for plain error. See Johnson v.

United States, 520 U.S. 461, 467 (1997) (holding plain error review applies absent a

preserved objection even when the error results from a change in the law that occurs

while the case is pending). Thus, Morelos must show there was an error, the error

was plain, his substantial rights were affected, and he must convince us to exercise our

discretion to correct the error because it seriously affected the fairness, integrity, or

public reputation of the judicial proceedings. E.g., United States v. Marston, 517 F.3d

996, 1004 (8th Cir. 2008).

Morelos argues the Supreme Court's decision in Gall "very well could have

affected the district court's opinion on how much of a variance he could legally give

[Morelos]." Appellant's Br. at 24. In Gall, however, the Supreme Court directed us

to "review all sentences – whether inside, just outside, or significantly outside the

Guidelines range – under a deferential abuse-of-discretion standard." 128 S.Ct. at

591. The Supreme Court also noted if a district court "decides that an outsideGuidelines sentence is warranted, [it] must consider the extent of the deviation and

ensure that the justification is sufficiently compelling to support the degree of the

variance. We find it uncontroversial that a major departure should be supported by

a more significant justification than a minor one." Id. at 597.

In this case, applying the abuse-of-discretion standard as we must (through the

lens of plain error review), it is significant the ultimate sentence imposed by the

district court was below the applicable guideline range. Additionally, the district court

did not state any "sufficiently compelling" reasons that might have justified a more

significant variance. Finally, we see nothing in the record to indicate the district court

may have been inclined to impose a more favorable sentence, but refrained from doing

so because it felt constrained by then-applicable law. Under these circumstances,

Morelos has failed to convince us a plain error affected his substantial rights, or that

the district court abused its discretion by imposing an unreasonable sentence.
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III

We affirm Morelos's conviction and sentence. 

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