* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### DEC 8 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. JOSE DEJESUS FERNANDEZ,

Defendant - Appellant. No. 03-5022 (D. Ct. No. 01-CR-065-H) (N.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , Chief Circuit Judge, BALDOCK , and MCCONNELL , Circuit Judges.

After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. After a jury trial, the district court convicted De fendant-Appellant Jose DeJesus Fernandez on seven counts relating to the p ossession and distribution of-2-

methamphetamine. On appeal, Mr. Fernandez challeng es (1) the denial of his motion for judgment of acquittal, (2) the admissionof certain evidence, (3) the denial of his motion to suppress evidence, and (4) his sentence enhancement. We AFFIRM the district court’s rulings on all four iss ues. I. Background On June 8, 2001, a federal grand jury indicted Mr. Fernandez and four codefendants on eight counts. The indictment charged Mr. Fernandez with seven counts: (1) one count of conspiracy to possess and distribute methamphetamine in violation of 21 U.S.C. § 846; (2) three counts of u sing telephones to facilitate a drug conspiracy in violation of 21 U.S.C. § 843(b); (3) two counts of traveling interstate to promote a drug conspiracy in violatio n of 18 U.S.C. § 1952; and (4) one count of possessing with intent to distribute m ore than 500 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a) (1) and (b)(1)(A)(viii). A jury convicted Mr. Fernandez on all counts. This appeal followed. On appeal, Mr. Fernandez puts forth four principal arguments. He argues that the district court erred in: (1) denying his m otion for a judgment of acquittal; (2) admitting evidence concerning the arrest of Ron ald Barrera; (3) denying his motion to suppress certain statements he made afterconsuming alcohol; and (4) enhancing his sentence under U.S.S.G. § 3B1.1(a). We take jurisdiction of this appeal under 28 U.S.C. § 1291 and AFFIRM.-3- II. Discussion A. The District Court Properly Denied Mr. Fernandez’s Motion for Judgment of Acquittal. Mr. Fernandez first argues that the district court erred by denying his motion for judgment of acquittal. “ We review the denial of a motion for judgment of acquittal de novo , viewing the evidence in the light most favorable to the government.” United States v. Bailey , 327 F.3d 1131, 1140 (10th Cir. 2003) (internal quotations omitted). This inquiry looks to “whether there is evidence from which a jury could find the defendant guilty b eyond a reasonable doubt[;] . . . however, we do not weigh the evidence or considerthe credibility of the witnesses in making [our] determination.” Id . (internal quotations omitted). We will only reverse a jury’s verdict “if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Haslip , 160 F.3d 649, 652 (10th Cir. 1998) (quotation omi tted). Mr. Fernandez attacks the denial of his motion for judgment of acquittal on several fronts. He first asserts that Deputy Carlo s Guzman, one of the principal witnesses in the case, gave unconvincing testimony, intimating that the testimony was either fabricated, internally inconsistent, or both. We reject this argument because it asks us to evaluate the credibility of D eputy Guzman’s testimony. As noted above, we do not weigh evidence or consider the credibili ty of witnesses when reviewing evidence in an appeal from the dismi ssal of a motion for-4-

judgment of acquittal. Bailey , 327 F.3d at 1140. Mr. Fernandez next argues that the district court e rred in dismissing the motion because the evidence presented at trial was insufficient to prove the existence of a conspiracy. He states that the reco rd evidence does not show that the alleged co-conspirators acted with any common p urpose or design. He therefore urges us to find that “the evidence was s o paltry, the allegations so unsubstantiated, that no reasonable jury should hav e found [Mr. Fernandez] guilty of conspiracy.” “To find a defendant guilty of conspiracy in violat ion of 21 U.S.C. §§ 841(a)(1) and 846, the jury must find, beyond a rea sonable doubt, (1) an agreement with another person to violate the law, ( 2) knowledge of the essential objectives of the conspiracy, (3) knowing and voluntary involvement, and (4) interdependence among the alleged conspirators.” United States v. Carter , 130 F.3d 1432, 1439 (10th Cir. 1997). Moreover, a jurymay “infer an agreement constituting a conspiracy from the acts of the part ies and other circumstantial evidence indicating concert of action for the accomplishment of a common purpose.” Id. (internal quotations omitted). After conducting a thorough review of the record, w e find that sufficient record evidence exists to allow a rational jury to find each of the essential elements of conspiracy beyond a reasonable doubt. Indeed, the record indicates-5-

that Deputy Guzman testified that on at least one o ccasion he met with Mr. Fernandez and an associate to plan a methamphetamin e transaction and that at least two other associates were involved in arrangi ng for delivery and transportation of the methamphetamine. This testim ony alone is sufficient to allow a reasonable jury to find the existence of a conspiracy. See, e.g., United
States v. Ramirez , __ F.3d __, 2003 WL 22481803, *5 (10th Cir. Nov. 4, 2003) (“[T]here was sufficient evidence from which a rati onal fact finder could find the essential elements of conspiracy established with r espect to Ramirez. Aside from the evidence about the attempted drug transaction w ith Agent Mora, Jeannine Sena testified as to several occasions when Ramirez and Marcos Natera picked up quantities of both cocaine and methamphetamine, and she described situations when she observed Arturo direct Ramirez to pick up money from people who owed Arturo money.”). Mr. Fernandez next argues that no rational jury cou ld have found that he used a telephone to facilitate the distribution of drugs. In light of the significant record evidence that Mr. Fernandez did in fact use a telephone to arrange for the sale of methamphetamine, we find this argument unco nvincing. Indeed, the record shows that Mr. Fernandez called Deputy Guzman on May 7, 2001, to arrange for the sale of methamphetamine; called two couriers on May 14, 2001, to coordinate the delivery of methamphetamine; and con tacted Deputy Guzman on1 Mr. Fernandez also argued that the interstate-travel counts and the

possession count must fail because no conspiracy ex isted. Because we reject Mr. Fernandez’s arguments that no conspiracy existed, w e also reject his argument as to the travel and possession counts. -6- May 18, 2001, regarding the sale of methamphetamine

. Pointing to his own lack of knowledge regarding som e points of the transaction and his alleged reluctance to complete the deal, Mr. Fernandez asks us to discount this significant evidence because, rath er than actually selling drugs to Deputy Guzman, he “may have been trying to ‘rip-off’ [Deputy] Guzman.” As we noted above, we do not weigh evidence or consider the credibility of witn esses when reviewing evidence in an appeal from the dismi ssal of a motion for judgment of acquittal. 1 Bailey , 327 F.3d at 1140. We leave such determinations to the district court. Id

. B. The District Court Correctly Admitted Evidence Concerning Ronald Barrera’s Arrest. Mr. Fernandez next argues that the district court e rred by admitting evidence concerning the arrest of Ronald Barrera. “We review a district court’s evidentiary rulings for abuse of discretion” United States v. Curtis , 344 F.3d 1057, 1067 (10th Cir. 2003). “Under that standard, we will not disturb an evidentiary ruling absent a distinct showing that i t was based on a clearly erroneous finding of fact or an erroneous conclusio n of law or manifests a clear error in judgment.” United States v. Jenkins , 313 F.3d 549, 558 (10th Cir. 2002).-7-

Even “[i]f we find error in the admission of eviden ce, we will set aside a jury verdict only if the error prejudicially affects a s ubstantial right of a party.” Coletti v. Cudd Pressure Control , 165 F.3d 767, 776 (10th Cir. 1999). Moreover, “[a] timely objection, accompanied by a s tatement of the specific ground of the objection, must be made when evidence is offered at trial to preserve the question for appeal, unless the groundis apparent from the context of the objection.” United States v. Norman T. , 129 F.3d 1099, 1106 (10th Cir. 1997). “The specific ground for reversal of an evi dentiary ruling on appeal must be the same as that raised at trial.” Id. On appeal, Mr. Fernandez challenges the admission o f the evidence on the grounds of relevancy, see Fed. R. Evid. 401, and prejudice, see Fed. R. Evid. 403. A thorough review of the transcript indicates , however, that at trial he only objected to the relevancy of the evidence. The Fed eral Rules of Evidence provide that error may not be predicated on a ruling admitt ing evidence unless there was “a timely objection or motion to strike appear[ing] of record.” Fed. R. Evid. 103(a)(1). “The failure to object to the introduct ion of evidence is deemed a waiver of the objection absent plain error. A plai n error is one that is obvious or seriously affects the fairness, integrity, or publi c reputation of judicial proceedings.” Dodoo v. Seagate Tech., Inc. , 235 F.3d 522, 529 (10th Cir. 2000) (citations omitted). Thus, we review Mr. Fernandez ’s Fed. R. Evid. 401 challenge-8-

to the admission of Mr. Barrera’s arrest into evide nce under the abuse of discretion standard and Mr. Fernandez’s Fed. R. Evi d. 403 challenge under the plain error standard. A careful review of the transcript indicates that t he district court did not abuse its discretion in admitting evidence of Mr. B arrera’s arrest against Mr. Fernandez’s relevancy objection. The stipulation s tated that (1) Officer James Siler stopped Mr. Barrera and Carlos Ruben Rodrigue z in a car eighty-five miles outside of Tulsa; (2) the car was a white, 2001 Che vrolet Malibu that had been rented in Ogden, Utah; (3) Mr. Barrera told OfficerSiler that he was a student; (4) Officer Siler found 946 grams of methamphetamin e in the trunk of the car; and (5) the methamphetamine was packaged to resembl e a birthday present. This evidence was clearly relevant in light of earlier t estimony that Mr. Fernandez had authorized a methamphetamine shipment to be deliver ed by students for whom he had provided a new rental car and that the methamph etamine would be packaged to resemble a present. See, e.g. , United States v. De La Torre , 634 F.2d 792, 795 (5th Cir. 1981) (conduct of others involved in a co nspiracy is relevant as corroborative evidence). We therefore reject Mr. F ernandez’s relevancy challenge. Further, reviewing Mr. Fernandez’s Fed. R. Evid. 40 3 objection under the plain error standard, we find that—even if the admi ssion was an error that was-9-

plain—Mr. Fernandez suffered no prejudice from the admission. The district court went to great lengths to limit Officer Siler’ s testimony by only allowing the prosecution to introduce the testimony in stipulati on format. This method limited any prejudice that Mr. Fernandez could have possibl y suffered from the admission. Thus, we find that the district court d id not commit plain error by admitting the testimony. C. The District Court Properly Rejected Mr. Fernan dez’s Motion to Suppress Mr. Fernandez next argues that the district court s hould have suppressed certain statements that he made after consuming alc ohol. “On appeal from a motion to suppress, we accept the district court’s factual findings unless clearly erroneous, review questions of law de novo, and vie w the evidence in the light most favorable to the prevailing party.” United States v. Minjares-Alvarez , 264 F.3d 980, 983-84 (10th Cir. 2001) (internal quotati ons omitted) (citations omitted). After fully reviewing the record, we fin d that sufficient evidence exists to affirm the district court’s denial of Mr. Fernan dez’s motion to suppress. D. The District Court Properly Enhanced Mr. Fernand ez’s Sentence Under U.S.S.G. § 3B1.1(a). Finally, Mr. Fernandez argues that the district cou rt erred by increasing his sentence for acting as a “leader/organizer” of the conspiracy pursuant to U.S.S.G.2 Because increases under § 3B1.1(a) are “enhanceme nts” rather than

“departures,” the multi-part standard of review man dated by the PROTECT Act, Pub. L. No. 108-21, 117 Stat. 650, does not apply. We therefore continue to review such sentencing determinations under the cle ar error standard.

3 The record plainly evidences that at least four o ther people, in addition to Mr. Fernandez, participated in the conspiracy. -10- § 3B1.1(a). We review this determination for clearerror. 2 United States v. Cruz-Camacho , 137 F.3d 1220, 1223-24 (10th Cir. 1998). A defen dant qualifies for a four-point enhancement under § 3B1.1(a) if he “was an organizer or leader of a criminal activity that involved five or more p articipants or was otherwise extensive.” 3 U.S.S.G. § 3B1.1(a) (2002). The comment to § 3B1 .1(a) lists several factors that a court may consider in determ ining a defendant’s status as an organizer or leader, including: the exercise of decision making authority, the natu re of participation in the commission of the offense, the recruitment o f accomplices, the claimed right to a larger share of the fruits of th e crime, the degree of participation in planning or organizing the offense , the nature and scope of the illegal activity, and the degree of co ntrol and authority exercised over others. U.S.S.G. § 3B1.1, Applicati on Note 4. “The gravamen of the enhancement is either the exer cise of control over other participants or the organization of others for the purpose of carrying out the crime.” United States v. Tagore , 158 F.3d 1124, 1131 (10th Cir. 1998). Moreover, § 3B1.1(a) reads in the disjunctive, mean ing that a court may increase a defendant’s sentence by four levels if h e was either a leader or an organizer. Tagore , 158 F.3d at 1131. “A defendant may receive an en hancement-11-

as an organizer for devising a criminal scheme, pro viding the wherewithal to accomplish the criminal objective, and coordinating and overseeing the implementation of the conspiracy.” Id. (internal quotations omitted). We find that the district court did not clearly errby increasing Mr. Fernandez’s sentence under § 3B1.1(a). In reaching its conclusion, the district court noted that the government’s brief in support of the increase provided ample justification that Mr. Fernandez was a leader or an organizer. The district court also highlighted several statements made by Mr. Fernandez regarding his leadership role in the conspiracy. Having reviewedthe record in full, we agree with the conclusion of the district court.
III. Conclusion For the reasons stated above, we AFFIRM the judgment of the district

court. ENTERED FOR THE COURT,

Deanell Reece Tacha Chief Circuit Judge