Filed: Dec. 28, 2012
Latest Update: Mar. 26, 2017
Summary: Case: 12-10004 Date Filed: 12/28/2012 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-10004 Non-Argument Calendar _ D.C. Docket No. 1:11-cr-00020-ODE-JFK-2 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LEONARDO MACEDO BALTAZAR, JOSE ABRAHAM MEMBRENO-ORELLANA, Defendants-Appellants. _ Appeals from the United States District Court for the Northern District of Georgia _ (December 28, 2012) Before BARKETT, WILSON and ANDERSON, Circuit Judg
Summary: Case: 12-10004 Date Filed: 12/28/2012 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-10004 Non-Argument Calendar _ D.C. Docket No. 1:11-cr-00020-ODE-JFK-2 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LEONARDO MACEDO BALTAZAR, JOSE ABRAHAM MEMBRENO-ORELLANA, Defendants-Appellants. _ Appeals from the United States District Court for the Northern District of Georgia _ (December 28, 2012) Before BARKETT, WILSON and ANDERSON, Circuit Judge..
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Case: 12-10004 Date Filed: 12/28/2012 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10004
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cr-00020-ODE-JFK-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONARDO MACEDO BALTAZAR,
JOSE ABRAHAM MEMBRENO-ORELLANA,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(December 28, 2012)
Before BARKETT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Leonardo Baltazar and Jose Membreno-Orellana appeal their convictions
stemming from their attempt to sell methamphetamine and marijuana to an
Case: 12-10004 Date Filed: 12/28/2012 Page: 2 of 7
undercover law enforcement agent from a truck containing the defendants, two co-
conspirators, and the drugs. 1 Specifically, Membreno-Orellana supplied the
marijuana, while Baltazar supplied the methamphetamine. Upon arresting them,
law enforcement found that both defendants possessed loaded firearms.
On appeal, Baltazar and Membreno-Orellana both argue that there was
insufficient evidence to convict them of possessing a firearm during and in relation
to a drug-trafficking crime. See 18 U.S.C. § 924(c)(1)(A)(i). Additionally,
Membreno-Orellana argues that there was insufficient evidence to support his
convictions for (1) conspiracy to possess with intent to distribute
methamphetamine, see 21 U.S.C. §§ 846 and 841(b)(1)(A)(viii); and (2)
possession with intent to distribute methamphetamine, see 21 U.S.C. § 841(a)(1),
(b)(1)(A)(viii), and 18 U.S.C. § 2. Baltazar also argues that the district court
abused its sentencing discretion by failing to avoid an unwarranted disparity
between Baltazar’s sentence and the shorter sentences of his co-conspirators.
I.
Regarding their convictions for possession of a firearm during and in
relation to a drug-trafficking crime, Baltazar and Membreno-Orellana argue that
there was insufficient evidence to prove that they possessed the firearms “in
1
From the truck, law enforcement seized 907.5 grams of methamphetamine and 4,489 grams of
marijuana, with a total “street value” of approximately $134,000.
2
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furtherance of” a drug-trafficking crime because the officers did not find the
firearms on them until the agents arrested them. 2 To prove a violation of 18 U.S.C.
§ 924(c), the government must show that the defendant “(1) knowingly (2)
possessed a firearm (3) in furtherance of any drug-trafficking crime for which he
could be prosecuted in a court of the United States.” United States v. Woodard,
531 F.3d 1352, 1362 (11th Cir. 2008). The presence of a gun during a drug-
trafficking offense alone is not sufficient to establish the “in furtherance” element,
id., but rather, the firearm must have “helped, furthered, promoted, or advanced the
drug trafficking[,]” Woodard, 531 F.3d at 1362 (internal quotations omitted). To
determine the latter, we consider several factors including:
The type of drug activity that is being conducted, accessibility of the
firearm, the type of the weapon, whether the weapon is stolen, the
status of the possession (legitimate or illegal), whether the gun is
loaded, proximity to the drugs or drug profits, and the time and
circumstances under which the gun is found.
Id. (internal quotations omitted).
Consistent with these factors, the jury here heard evidence that both Baltazar
and Membreno-Orellana were involved in a major drug deal, involving large
amounts of cash and drugs packaged for distribution. They further heard that
2
We review the denial of a defendant’s motion for judgment of acquittal on sufficiency-of-the-
evidence grounds de novo, viewing the evidence in the light most favorable to the government.
United States v. Emmanuel, 565 F.3d 1324, 1333 (11th Cir. 2009). We will uphold a conviction
unless the jury could not have found the defendant guilty under any reasonable construction of
the evidence. Id.
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Baltazar and Membreno-Orellana each illegally possessed a loaded semiautomatic
firearm tucked into their waistband and positioned near the drugs in the truck.
The court did not err in upholding their convictions under § 924(c) because a
reasonable jury could infer that Baltazar and Membreno-Orellana used their
weapons as protection for the drugs and thereby conclude that each possessed their
firearm “in furtherance of” the anticipated drug deal.
II.
Membreno-Orellana argues that there was insufficient evidence to support
his convictions for possession with intent to distribute methamphetamine and
conspiracy to possess with intent to distribute methamphetamine because he was
unaware that his co-conspirators were dealing methamphetamine in the drug
transaction.
For conspiracy to possess with intent to distribute drugs, the government
must prove that (1) an agreement existed between two or more persons to commit a
crime, and (2) the defendant knowingly and voluntarily participated in the
conspiracy. United States v. Ohayon, 483 F.3d 1281, 1292 (11th Cir. 2007). A
defendant may be found guilty of conspiracy if the evidence demonstrates that he
knew the essential objective of the conspiracy, even if the defendant did not know
all the details or played only a minor role in the overall scheme. United States v.
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McNair, 605 F.3d 1152, 1195-96 (11th Cir. 2010). The government does not have
to show that a defendant participated in every stage of the conspiracy. Id. at 1196.
The jury here heard evidence that: Membreno-Orellana had telephone
contact with at least one other co-defendant multiple times in the days leading up
to the deal; co-conspirator Carlos Ivan Ortiz-Aleman told the undercover agent that
the drug transaction would involve multiple suppliers selling to the agent for a
single price; Membreno-Orellana arrived to the deal with the co-defendants in a
truck driven by Ortiz-Aleman; and Membreno-Orellana attempted to show the
contents of a large bag of marijuana to the undercover agent. This evidence
allowed the jury to reasonably conclude that Orellana conspired with his co-
defendants towards the common goal of selling marijuana and methamphetamine.
Regarding his drug possession conviction, Membreno-Orellana specifically
argues that the government failed to sufficiently prove that he knowingly possessed
the methamphetamine. For drug possession with intent to distribute, the
government must prove that the defendant had (1) knowledge, (2) possession, and
(3) intent to distribute. United States v. Garcia-Bercovich, 582 F.3d 1234, 1237
(11th Cir. 2009). Possession may be constructive and “will be found where there
is a knowing exercise of or the knowing power or right to exercise dominion and
control over the substance.” United States v. Mieres-Borges,
919 F.2d 652, 657
(11th Cir. 1990) (quotation omitted). A defendant’s possession conviction will be
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affirmed if he aided and abetted another person’s possession. United States v.
Bain, 736 F.2d 1480, 1487 (11th Cir. 1984). 3 The jury heard sufficient evidence to
find that Orellana’s participation went beyond merely being present in the truck
with the methamphetamine to being an active participant in ensuring the success of
a large, multi-drug transaction, which included the methamphetamine. See United
States v. Rackley,
742 F.2d 1266, 1272 (11th Cir. 1984). Thus, the court did not
err in upholding Membreno-Orellana’s conviction for methamphetamine
possession with intent to distribute.
III.
Baltazar challenges the reasonableness of his sentence by arguing that the
district court abused its discretion in weighing the sentencing factor evaluating “the
need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.” See 18 U.S.C. §
3553(a)(6). Baltazar received a 200-month long sentence, which was within his
guidelines range of 180-months to life, but longer than that of Ortiz-Aleman, the
primary organizer of the drug deal, and those of the two other co-conspirators who
both had greater criminal histories than Baltazar. During sentencing, the judge
3
For aiding and abetting, the government must prove that (1) the substantive offense took place;
(2) the defendant associated himself with that crime; and (3) the defendant committed some act
that furthered the crime. United States v. Camargo-Vergara, 57 F.3d 993, 1001 (11th Cir. 1995).
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noted that, unlike Ortiz, Baltazar carried a gun to the drug deal and went to trial.
Moreover, the judge further noted that, unlike his two other co-conspirators,
Baltazar offered to supply the agents specifically with methamphetamine, a
particularly dangerous drug. We may vacate a sentence only “if we are left with
the definite and firm conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of the case.” United
States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (internal quotations omitted).
Baltazar has not met his burden of showing that the court abused its discretion by
imposing an unreasonable sentence.
AFFIRMED.
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