United States v. Leal

32 F.4th 888

UNITED STATES of America, Plaintiff - Appellee,

v.Gaspar LEAL, Defendant - Appellant.

No. 21-2003

United States Court of Appeals, Tenth Circuit.

FILED April 25, 2022

Scott M. Davidson of Scott M. Davidson, Ph.D., Esq., Albuquerque, New Mexico, for Defendant-Appellant.

Tiffany L. Walters, Assistant United States Attorney, Office of the United States Attorney, District of New Mexico, Albuquerque, New Mexico (Fred J. Federici, Acting United States Attorney, with her on the briefs), for Plaintiff-Appellee.

Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.

BACHARACH, Circuit Judge.

This appeal grew out of a drug case against Mr. Gaspar Leal. The case began when a confidential informant visited Mr. Leal and asked about buying drugs. In response, Mr. Leal put the confidential informant in touch with several individuals, and the informant ultimately purchased methamphetamine twice from a third party (Daniel Carmona). These purchases led to Mr. Leal's conviction for conspiring to distribute at least 50 grams of methamphetamine. See 21 U.S.C. §§ 841(b)(1)(B), 846. The district court sentenced Mr. Leal to a prison term of 30 years.

Mr. Leal presents three appellate arguments:

1. Insufficient evidence existed on Mr. Leal's knowledge of the drug type (methamphetamine) and quantity (at least 50 grams).

2. The government acted outrageously when investigating Mr. Leal.

3. The 30-year sentence was unreasonable because it far exceeded the sentences for more culpable codefendants and failed to account for Mr. Leal's mental illnesses.

We affirm the conviction and sentence based on three conclusions. First, the jury could reasonably find that Mr. Leal had known that the conspiracy involved at least 50 grams of methamphetamine. Second, Mr. Leal has not established that the government's conduct was clearly and obviously outrageous. Finally, the sentence was not substantively unreasonable: Mr. Leal's crime carried a mandatory minimum of ten years in prison, and the district court reasonably considered Mr. Leal's status as a career offender and his mental illnesses.

I. Sufficient evidence existed to convict for conspiracy to distribute at least 50 grams of methamphetamine.

Mr. Leal challenges the sufficiency of the evidence regarding his knowledge of the drug type (methamphetamine) and quantity (at least 50 grams). We reject these contentions.

A. Our review is de novo.

In addressing the sufficiency of the evidence, we engage in de novo review. United States v. Yurek , 925 F.3d 423, 430 (10th Cir. 2019). This review entails consideration of the evidence in the light most favorable to the government, and we reverse only if no reasonable factfinder could have found guilt beyond a reasonable doubt. Id. To find guilt beyond a reasonable doubt, the factfinder could rely on the evidence and reasonable inferences drawn from that evidence, but could not engage in "speculation" or "conjecture." United States v. Arras , 373 F.3d 1071, 1073–74 (10th Cir. 2004).

B. The evidence and reasonable inferences show Mr. Leal's knowledge that the sale would involve at least 50 grams of methamphetamine.

To obtain a conspiracy conviction, the government needed to prove four elements:

1. Mr. Leal and another person (excluding the confidential informant) agreed to violate the law.

2. Mr. Leal had "knowledge of the essential objective of the conspiracy."

3. Mr. Leal's involvement was "knowing and voluntary."

4. "Interdependence" existed among Mr. Leal and the alleged coconspirators.

United States v. Cushing , 10 F.4th 1055, 1065 (10th Cir. 2021) (quoting United States v. Rahseparian , 231 F.3d 1257, 1262 (10th Cir. 2000) ), cert. denied , ––– U.S. ––––, 142 S. Ct. 813, 211 L.Ed.2d 504 (2022).

Mr. Leal homes in on the second element, arguing that he acted only to facilitate the sale of marijuana (not methamphetamine) and didn't know how much the informant wanted to buy. But the jury could reasonably find Mr. Leal's knowledge that the sale would involve at least 50 grams of methamphetamine.¹

1. The jury could reasonably find participation in the conspiracy based on Mr. Leal's phone calls.

While Mr. Leal was in prison on other charges, he called the informant and told him to contact Mr. Jose Casillas. The informant then called Mr. Casillas, but that call didn't result in a sale: Mr. Casillas said that he sold only marijuana and knew from Mr. Leal that the informant was interested in buying methamphetamine. The exchange was:

  CHS: All right. Did he told your — did he
  tell you what I do
  JOSE CASILLAS: Kind of. I think he said
  something about like you like to hang around with
  homegirl Crystal
  CHS: Who the fuck is that, Crystal
  JOSE CASILLAS: You know, the stuff that
  people (inaudible)

Appellee's Supp. App'x vol. 1, at 37. (The call transcript referred to the informant as "CHS" because he was a confidential human source.)

Though Mr. Casillas didn't sell methamphetamine, he was willing to pass along the informant's request. But Mr. Casillas first needed to confirm the quantity of methamphetamine that the informant wanted to buy:

  CHS: — usually — usually I — usually I
  get two zippers
  JOSE CASILLAS: Two zippers. Okay.

Appellee's Supp. App'x vol. 1, at 38. Mr. Casillas then sent a Facebook message to Ms. Erika Barraza, the girlfriend of Luis Arreola-Palma, who was in jail with Mr. Leal. Id.²

Mr. Arreola-Palma, Mr. Casillas, and Mr. Leal later called the informant to arrange a sale. In that call, Mr. Arreola-Palma told the informant to contact another individual (Mr. Daniel Carmona), who would sell the methamphetamine and collect the money. Mr. Leal added that he expected to be paid, gave the informant the phone number for Mr. Carmona, and told the informant to call the number while they stayed on the phone. The informant said that he couldn't make the call, so Mr. Casillas tried to phone Mr. Carmona while everyone else waited. But Mr. Carmona didn't answer, and the group wrapped up their call. The informant later bought methamphetamine twice from Mr. Carmona, obtaining about two ounces each time.

2. Sufficient evidence existed to prove Mr. Leal's knowledge that the sale would involve methamphetamine.

Mr. Leal ultimately participated in two calls connecting the informant to the seller of methamphetamine (Mr. Carmona). Mr. Leal focuses on the first of these calls. In that call, Mr. Leal told the informant to contact someone who sold only marijuana (Mr. Casillas). Mr. Leal questions how the referral to Mr. Casillas could suggest knowledge that the sale would involve methamphetamine. Mr. Leal's focus on this call overlooks four pieces of evidence:

1. Mr. Casillas said that he knew from Mr. Leal that the informant wanted to buy methamphetamine.

2. Mr. Casillas then contacted Luis Arreola-Palma's girlfriend about selling methamphetamine to the informant.

3. In a group call with the informant, Mr. Leal claimed a fee, gave the informant the phone number for Mr. Carmona, told the informant to call Mr. Carmona, and waited while Mr. Casillas tried to call Mr. Carmona.

4. The informant then contacted Mr. Carmona and bought methamphetamine from him on two separate days. Each purchase consisted of roughly two ounces (about 56 grams).

Mr. Leal thus participated twice in a series of calls connecting the informant to the person who ultimately sold the methamphetamine.

Though Mr. Leal focuses on the first call, the jury could reasonably have relied on Mr. Leal's later role in connecting the informant to Mr. Carmona. By then, Mr. Casillas had confirmed his understanding from Mr. Leal that the informant wanted to buy methamphetamine. After confirming that understanding, Mr. Casillas joined Mr. Leal and Mr. Arreola-Palma in a phone call, where they arranged for the informant to buy methamphetamine from Mr. Carmona. The evidence thus sufficed for a finding that Mr. Leal had known that the sale would involve methamphetamine.

3. Sufficient evidence existed for the jury to find that Mr. Leal had known the sale would involve at least 50 grams.

Mr. Leal also argues that the jury could only speculate on his knowledge about the quantity (at least 50 grams). In making this argument, Mr. Leal overlooks three key pieces of evidence:

1. When talking to Mr. Casillas, the informant said that he usually bought two "zippers" of methamphetamine.

2. In the phone call between Mr. Leal, Mr. Casillas, Mr. Arreola-Palma, and the informant, Mr. Arreola-Palma told the informant to give the pricing information to Mr. Carmona (that the informant would "give [Mr. Carmona] ... three for one of them, and the other one after that is four"). Appellee's Supp. App'x vol. 1, at 40. Mr. Leal then stated, "I'm going to get a piece of that ...." Id.

3. The informant then called Mr. Carmona and bought methamphetamine from him on two separate days. Each purchase consisted of roughly two ounces.

Some inferences were required for the jury to find that Mr. Leal had known of the informant's desire to buy at least 50 grams. But these inferences were reasonable. Mr. Casillas was told that the informant wanted to buy two "zippers" of methamphetamine at a time. After obtaining this information, Mr. Casillas, Mr. Arreola-Palma, and Mr. Leal connected the informant with Mr. Carmona (the seller). With Mr. Leal on the phone, Mr. Arreola-Palma told the informant what the prices would be for two "of them." Appellee's Supp. App'x vol. 1, at 40. Mr. Leal then claimed a fee.

The government elsewhere presented evidence that (1) "zippers" referred to ounces and (2) one ounce equals about 28 grams. Appellant's App'x vol. 1, at 38, 90, 94, 118. Because the evidence reflected 2 sales of roughly 2 ounces each, the jury could reasonably find that Mr. Leal had known that the conspiracy would involve at least 50 grams of methamphetamine. We thus reject Mr. Leal's challenge to the sufficiency of the evidence.

II. The government's conduct in the investigation was not obviously outrageous.

Mr. Leal also claims that the government acted...