Filed: Dec. 20, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 12-20-2005 USA v. Alamo Precedential or Non-Precedential: Non-Precedential Docket No. 04-3544 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "USA v. Alamo" (2005). 2005 Decisions. Paper 85. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/85 This decision is brought to you for free and open access by the Opinions of the United States Co
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 12-20-2005 USA v. Alamo Precedential or Non-Precedential: Non-Precedential Docket No. 04-3544 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "USA v. Alamo" (2005). 2005 Decisions. Paper 85. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/85 This decision is brought to you for free and open access by the Opinions of the United States Cou..
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-20-2005
USA v. Alamo
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3544
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"USA v. Alamo" (2005). 2005 Decisions. Paper 85.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/85
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 04-3544
UNITED STATES OF AMERICA
v.
ALEXANDER ALAMO,
a/k/a FLEX,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No.: 03-CR-00812
District Judge: The Honorable James Knoll Gardner
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 15, 2005
Before: SLOVITER, SMITH and VAN ANTWERPEN, Circuit Judges
(Filed: December 20, 2005)
OPINION
SMITH, Circuit Judge.
Alexander Alamo sold crack cocaine to Officer Flanagan of the Reading Police
Department on January 9, March 21, March 26, and April 7, 2003. The consideration
given for the crack cocaine during the March 26 controlled buy was an air conditioner.
After the sale was completed, Alamo was followed to an apartment on Buttonwood Street
leased by his girlfriend Myra Ruiz. After the April 7 purchase, officers from the Reading
Police Department obtained a search warrant for the Buttonwood Street apartment.
During the execution of the search warrant on April 9, officers found the air conditioner
that had been tendered in the March 26 controlled buy, as well as several firearms, and an
additional quantity of crack cocaine.
A grand jury returned a thirteen count indictment against Alamo charging him
with: conspiring to distribute crack cocaine in violation of 21 U.S.C. § 846 (Count 1);
distributing crack cocaine in violation of 21 U.S.C. § 841 (Counts 2, 4, 6 and 8);
distributing crack cocaine within 1000 feet of a school in violation of 21 U.S.C. § 860
(Counts 3, 5, 7 and 9); possessing crack cocaine with the intent to distribute in violation
of 21 U.S.C. § 841 (Count 10); possessing crack cocaine with the intent to distribute
within 1000 feet of a school in violation of 21 U.S.C. § 860 (Count 11); possessing a
firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)
(count 12); and possessing a firearm by a convicted felon in violation of 18 U.S.C. §
922(g) (Count 13). At trial, in addition to the testimony of the officers involved in the
investigation, Myra Ruiz testified for the government. She confirmed that, even though
her name was the only one on the lease for the apartment, she and Alamo lived together at
the apartment. She explained that Alamo did not work, but that he made money by
selling crack cocaine, “sometimes . . . about 2,000 to $3,000 a day.” Alamo used a
2
particular pot and knife, according to Ruiz, to cook the crack. She affirmed that the
firearms and drugs found during the search were Alamo’s.
The jury convicted Alamo of counts 1, 2, 3, 6, 7, 10, 11, and 13. Alamo’s “sole
challenge on appeal is that the jury did not have sufficient evidence on which to base its
verdict of guilty as to possession of the firearms and cocaine seized during the [execution
of the] search warrant.” 1 He contends that the evidence is insufficient because he did not
live at the Buttonwood apartment. For that reason, Alamo contends, that the government
failed to prove that he exercised sufficient control over the gun and the drugs which were
found in the apartment.
We “review[] the sufficiency of the evidence in the light most favorable to the
government and must credit all available inferences in favor of the government.” United
States v. Riddick,
156 F.3d 505, 509 (3d Cir. 1998). After reviewing the record,
particularly Ruiz’s testimony, we conclude that there is sufficient evidence for a jury to
find that Alamo had dominion and control over the drugs and the guns that were found
during the execution of the search warrant. Accordingly, Alamo’s conviction on Counts
1, 10, 11, and 13 should not be disturbed.
In response to this Court’s inquiry about the applicability of the Supreme Court’s
decision in United States v. Booker,
125 S. Ct. 125 (2005), Alamo sought resentencing.
1
In other words, Alamo challenges only his convictions on Counts 1, 10, 11 and 13. He
does not challenge his conviction on Counts 2 and 6 for distribution, or Counts 3 and 7
for distribution within 1000 feet of a school.
3
The government concedes that Alamo should be resentenced. Accordingly, consistent
with United States v. Davis,
407 F.3d 162 (3d Cir. 2005) (en banc), we will vacate
Alamo’s sentence and remand for resentencing in accordance with Booker.